DOCKET NUMBER:  AR20090003239 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be awarded two awards of the Purple Heart and that all unit awards he is entitled to be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states, in effect, that he was wounded on 26 January 1967 and again on either 29 or 30 July 1967 and no Purple Heart was authorized.  In one incident, he sustained a fragmentation wound in an encounter with a Viet Cong unit and in the second incident, he sustained the concussion from enemy mortars while defending the perimeter.

3.  The applicant adds that his unit was authorized to wear the black beret around early March 1967 and he believes that his reconnaissance platoon of 18 men were awarded medals for the battle of Ap-Gu which lasted from 30 March to 2 April 1967.  None of these were included on his DD Form 214 when he was released from active duty.

4.  In support of his application, the applicant submits a copy of his DD Form 214, a copy of page 3 and page 4 of his DA Form 20 (Enlisted Qualification Record), a copy of a DA Form 2658 (Health Record - Abstract of Service), and a copy of a Standard Form (SF) 600 (Chronological Record of Medical Care).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s records show he enlisted in the Regular Army on 11 January 1965.  He completed basic combat training at Fort Knox, Kentucky, and his advanced individual training at Fort Dix, New Jersey.  On completion of his training, the applicant was awarded the military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic).

3.  The applicant served in Vietnam from 3 September 1966 through 1 September 1967, with Company A and with Headquarters and Headquarters Company, 1st Battalion, 26th Infantry Regiment of the 1st Infantry Division.

4.  The applicant was released from active duty under honorable conditions, on 3 June 1968, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), at the expiration of his term of service.  He was separated in the rank/pay grade, Private, E-2.  On the date he was released from active duty he had completed 3 years active military service, with 145 days time lost.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded:  the National Defense Service Medal, the Vietnam Service Medal with one bronze service star, the Republic of Vietnam Campaign Medal, the Combat Infantryman Badge, and the Marksman Marksmanship Qualification Badge with Rifle Bar.  No other award is shown on the applicant's DD Form 214.

6.  There is no entry in Item 40 (Wounds) of the applicant's DA Form 20 to show that he received a wound (fragmentation or concussion) in action against a hostile force.

7.  There is no entry in Item 41 (Awards and Decorations), of the applicant's DA Form 20 showing he was awarded the Purple Heart or that he was authorized to wear any unit awards that were awarded to his unit while he was a member of the unit.
8.  The applicant's name does not appear on the Vietnam Casualty List.

9.  There are no orders in the applicant's military personnel records awarding him the Purple Heart or the Purple Heart with oak leaf cluster.

10.  The SF 600, dated 11 February 1967, the applicant submitted in support of his request for award of the Purple Heart states, "the patient was hit by friendly shrapnel last night at field site."  The applicant reported to the medical treatment personnel that he took the fragments out himself in the night after the incident occurred.  The SF 600 has no indication that the applicant or the applicant's unit was engaged in an armed conflict with the enemy at the time he was wounded by the friendly shrapnel.

11.  There are no medical records, and the applicant submitted none, to show he sustained a concussion as a result of exploding enemy mortars while he served on the perimeter.

12.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for the Purple Heart to the applicant.

13.  The applicant's DD Form 214 shows entitlement to the Vietnam Service Medal with one bronze service star; however, it does not show the correct number of bronze service stars to which the applicant is entitled as a result of his campaign participation.

14.  While in Vietnam, the applicant participated in the following two campaigns of the Vietnam War:  the Vietnam Counteroffensive, Phase II, which extended from 1 July 1966 through 31 May 1967; and the Vietnam Counteroffensive, Phase III, which extended from 1 June 1967 through 29 January 1968.

15.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register), which lists unit awards received by units serving in Vietnam, shows the unit the applicant was assigned to was awarded:  the Valorous Unit Award, for action on 1 April 1967, by Department of the Army General Order (DAGO) Number 37, dated 1970; the Republic of Vietnam Gallantry Cross with Palm Unit Citation, for the period 12 July 1965 through 16 October 1968, by DAGO Number 21, dated 1969; and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, for the period October 1965 through 7 April 1970, by DAGO Number 53, dated 1970.

16.  Army Regulation 600-8-22 (Military Awards), in pertinent part, authorizes award of a bronze service star, based on qualifying service, for each campaign listed in its Appendix B and states that authorized bronze service stars will be worn on the appropriate service medal, in this case, the Vietnam Service Medal.

17.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.  

18.  Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia), chapter 29, prescribes policy and guidance for wear of U.S. and foreign unit awards.  This regulation states that a Soldier may wear the unit award permanently if the individual was assigned to, and present for duty with the unit any time during the period cited; or was attached by competent orders to, and present for duty with the unit during the entire period, or for at least thirty consecutive days of the period cited.

DISCUSSION AND CONCLUSIONS:

1.  To be awarded the Purple Heart, substantiating evidence must be presented to show that the Soldier was wounded as the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

2.  The evidence shows that the applicant was hit by friendly shrapnel at a field site.  The applicant was treated by medical treatment personnel and the treatment was made a matter of official record; however, the SF 600 the applicant submitted as evidence has no indication that the applicant or the applicant's unit was engaged in an armed conflict with the enemy at the time he was wounded by the friendly shrapnel and that the presumed exploding projectile or mine was deployed with the express intent of killing or wounding the enemy.

3.  There are no medical records and no entries were made in his service personnel records to show the applicant sustained concussion wounds as a result of the explosion of enemy mortars while he served in Vietnam.

4.  The applicant's name does not appear on the Vietnam Casualty Listing.  There were no entries made in his service personnel records to show he was wounded as a result of hostile action and no orders were published to award him the Purple Heart or the Purple Heart with oak leaf cluster.

5.  Based on the evidence in this case, the applicant is not entitled to award of the Purple Heart or to a Purple Heart with an oak leaf cluster [to indicate being wounded twice] and to have this award added to his DD Form 214.

6.  The applicant's DD Form 214 shows entitlement to the Vietnam Service Medal with one bronze service star.  The applicant participated in two campaigns of the Vietnam War.  He is therefore entitled to a correction of his DD Form 214 to show he was awarded the Vietnam Service Medal, with two bronze service stars, as opposed to the Vietnam Service Medal, with the one bronze service star, now shown on his DD Form 214.

7.  The applicant served in a unit which was awarded the Valorous Unit Award, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation while he was a member of the unit.  These unit awards are not shown on his DD Form 214.  He is entitled to wear these unit awards and to have them added to his DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___	____  _______  _______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the Vietnam Service Medal, with one bronze service star, from his DD Form 214;

	b.  awarding him the Vietnam Service Medal, with two bronze service stars, and adding this award to his DD Form 214; and
   
   c.  adding the Valorous Unit Award, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation to his DD Form 214.
2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the Purple Heart or the Purple Heart, with oak leaf cluster, to the applicant.




      _______ _   x_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20090003239





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ABCMR Record of Proceedings (cont)                                         AR20090003239



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