BOARD DATE:	  16 July 2009

		DOCKET NUMBER:  AR20090003412 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to include the Vietnam Service Medal, the Purple Heart, and the Combat Infantryman Badge.

2.  The applicant states that his Vietnam Service Medal, the Purple Heart, and the Combat Infantryman Badge are not reflected on his DD Form 214.

3.  In support of his request, the applicant submits a copy of his DD Form 214 and a copy of Special Orders Number 73, dated 3 April 1967.  The applicant indicated that he was also including a copy of Department of Veterans Affairs (VA) Case File Number CSS 0**-**-***9; however, this case file was not received with the applicant's application for correction of his military record.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's discharge be corrected to include award of the Purple Heart and the Combat Infantryman Badge for his service during the Vietnam era.

2.  Counsel opines and states that following careful review of the evidentiary record, the issues raised on the DD Form 149 (Application for Correction of Military Record) amply advance the applicant's contentions and substantially reflects probative facts needed for an equitable review.

3.  Counsel provides no additional documentary evidence in support of the applicant's request.

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 record shows he was inducted into the Army of the United States on 3 November 1965.  He completed his basic combat training at Fort Hood, Texas, and his advanced individual training at Fort Meade, Maryland.  After completing all required training, he was awarded the military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman).  On 27 July 1967, the applicant was reclassified and awarded the MOS 11B (Light Weapons Infantryman).

3.  The applicant served in Vietnam from 20 August 1966 through 23 February 1967, with Troop G, 2d Squadron, 11th Armored Cavalry Regiment.  The applicant was medically evacuated from Vietnam to the 249th General Hospital in Japan on 24 February 1967 for treatment of burns.

4.  The applicant was honorably released from active duty on 2 November 1967 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations) at the expiration of his term of service.  He was separated in the rank/pay grade, corporal/E-4.  On the date he was released from active duty he had completed 2 years active military service with no 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 Army Good Conduct Medal, the National Defense Service Medal, and the Vietnam Service Medal.  The Purple Heart and the Combat Infantryman Badge are not shown on the applicant's DD Form 214.

6.  There is no entry in item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) to show that he received a wound 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 either the Purple Heart or the Combat Infantryman Badge.

8.  There are no orders in the applicant's military personnel records awarding him the Purple Heart.

9.  A 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, was conducted to determine if the applicant was awarded the Purple Heart.  This search failed to reveal any orders were published awarding the Purple Heart to the applicant.

10.  The applicant's name does not appear on the Vietnam casualty list.

11.  On 26 May 1967, an informal line-of-duty investigation was completed into the injury that was sustained by the applicant on 16 February 1967.  On 16 February 1967, the applicant suffered second and third degree burns to the right leg, right forearm, and to the buttocks when charges from a 4.2-inch mortar round exploded.  The applicant's injury was ruled to have been incurred in the line of duty and a formal investigation was deemed not to be required.  There is no indication on the DA Form 2173 (Statement of Medical Examination and Duty Status) that would indicate that the proximate cause of the mortar round explosion was due to enemy activity.  In item 15 (Detail of Accident or History of Disease) of the DA Form 2173, the entry made begins with, "Patient was injured…"  The term, wounded was not used.  

12.  A copy of the Standard Form 88 (Report of Medical Examination) that was completed in preparation for the applicant's release from active duty is on file in the applicant's service records.  There is an indication the applicant had a scar on his right leg; however, there is no indication the scar was incurred due to enemy action in Vietnam.

13.  The applicant's DD Form 214 does show authorization for the Vietnam Service Medal [shown as the VNSM]; however, it does not show the bronze service star to which he is entitled for his campaign participation.

14.  While in Vietnam, the applicant participated in the Vietnam Counteroffensive Phase II campaign which extended from 1 July 1966 through 31 May 1967.

15.  The applicant served in Vietnam for a period of 8 months and 4 days before he was evacuated from Vietnam to receive medical treatment.  His DD Form 214 does not show his entitlement to the Republic of Vietnam Campaign Medal.

16.  The applicant was awarded the Combat Infantryman Badge on 3 April 1967 by Special Orders Number 73, published by Headquarters, 11th Armored Cavalry Regiment, on 3 April 1967.

17.  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 Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 7 September 1966 through 10 August 1968 by Department of the Army General Order Number 60, dated 1969.

18.  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 appendix B and states that authorized bronze service stars will be worn on the appropriate service medal; in this case, the Vietnam Service Medal.

19.  The applicant was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) in Special Orders Number 14 published by Headquarters, 2d Armored Division, Fort Hood, Texas, on 14 January 1966.

20.  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.

21.  Army Regulation 600-8-22 provides, in pertinent part, for award of the Republic of Vietnam Campaign Medal.  The Government of Vietnam awarded this medal to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973.  Qualifying service included assignment in Vietnam for 6 months or service outside the geographical limits of the Republic of Vietnam that contributed direct combat support to the Republic of Vietnam and its Armed Forces.  Individuals who had qualified for award of the Vietnam Service Medal or the Armed Forces Expeditionary Medal and were medically evacuated prior to completing 6 months of service due wounds resulting from hostile action were entitled to award of the Republic of Vietnam Campaign Medal.

22.  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 30 consecutive days of the period cited.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was awarded the Combat Infantryman Badge; however, it was not included on his DD Form 214 when he was released from active duty.  The applicant is therefore entitled to have the Combat Infantryman Badge added to his DD Form 214 at this time.

2.  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.

3.  The evidence shows the applicant suffered second and third degree burns to the right leg, right forearm, and to the buttocks when charges from a 4.2-inch mortar round exploded on 16 February 1967.  On 26 May 1967, an informal line-of-duty investigation was completed into the injuries that were sustained by the applicant.  There is no indication on the DA Form 2173 that was completed to indicate that the proximate cause of the mortar round explosion was due to hostile action.  The applicant's injury was, however, ruled to have been incurred in the line of duty and a formal investigation was deemed not to be required.

4.  It appears that the applicant's unfortunate event was believed to have been an accident.  In item 15 of the DA Form 2173 that was completed on 26 May 1967, the entry made begins with, "Patient was injured…"  The term, wounded was not used.

5.  There is no evidence in ADCARS or elsewhere to indicate that orders awarding the Purple Heart to the applicant were published by either the applicant's unit or the hospital to which he was medically evacuated to receive his medical treatment.
6.  The applicant's name does not appear on the Vietnam casualty listing and there were no entries made in his service personnel record to show he was wounded as a result of hostile action.

7.  Based on the evidence in this case, the applicant is not entitled to award of the Purple Heart and to have it added to his DD Form 214.

8.  The applicant served in one campaign while he served in Vietnam.  He is therefore entitled to one bronze service star to be affixed to his Vietnam Service Medal and to be shown on his DD Form 214.

9.  The applicant served in Vietnam for a period of 8 months and 4 days before he was evacuated from Vietnam to receive medical treatment.  He is therefore entitled to award of the Republic of Vietnam Campaign Medal and to have this award added to his DD Form 214.

10.  The applicant served in a unit which was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation while he was a member of the unit.  This unit award is not shown on his DD Form 214.  He is entitled to this unit award and to have it added to his DD Form 214.

11.  The applicant earned the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  This badge is not shown on his DD Form 214.  He is entitled to have this badge 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 [the entry VNSM] from the applicant's DD Form 214; and
	b.  adding the Vietnam Service Medal with one bronze service star, the Republic of Vietnam Campaign Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Combat Infantryman Badge, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar to the applicant's 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 to the applicant and its addition to his DD Form 214.



      ___________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)                                         AR20090003412



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ABCMR Record of Proceedings (cont)                                         AR20090003412



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