IN THE CASE OF:	  

		BOARD DATE:	       13 AUGUST 2009

		DOCKET NUMBER:  AR20090003758 


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 award of an additional Purple Heart and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show receipt of any additional awards to which he is entitled.

2.  The applicant states, in effect, that he was wounded on 29 July 1967 during Operation Junction City as the result of an explosion while serving near the city of Phuc Vin in the Republic of Vietnam.  The applicant also states that his wounds consisted of a lacerated wrist, a broken leg, and compressed discs in his back which rendered him unable to walk for a period of 30 days.

3.  The applicant provides no documentary evidence in support of this request.

CONSIDERATION OF EVIDENCE:

1.  Title 10, United States 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 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 that he was inducted into the Army of the United States and entered active duty on 31 May 1966.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapon Infantryman).  The highest rank he attained while serving on active duty was the rank of specialist four (SP4)/pay grade E-4.  The applicant was released from active duty on 29 May 1968 and transferred to the United States Army Reserve (USAR) Control Group (Annual Training) to com-plete his remaining Reserve obligation.

3.  Headquarters, U.S. Army Training Center and Fort Leonard Wood, Fort Leonard Wood, Missouri, Special Orders Number 201, dated 20 July 1966, awarded the applicant the Sharpshooter Marksmanship Qualification Badge with Rifle Bar [M-14 Rifle] effective 16 July 1966.

4.  Headquarters, Fort Polk, Fort Polk, Louisiana, Special Orders Number 257, dated 5 October 1966, awarded the applicant the Second Class Gunner [hereafter referred to as the Sharpshooter] Marksmanship Qualification Badge with Machinegun Bar [M-60] effective 27 September 1966.

5.  Item 31 (Foreign Service) of the applicant's DA Form 20 (Enlisted Qualification Record) shows the applicant served a tour of duty in the Republic of Vietnam during the period of 21 November 1966 through 18 November 1967.

6.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows that during his tour of duty in the Republic of Vietnam, the applicant served in Company A, 1st Battalion of the 18th Infantry Regiment, 1st Infantry Division.  Item 38 also shows the applicant received conduct and efficiency ratings of "excellent" for each of his duty assignments.

7.  Item 40 (Wounds) of the applicant's DA Form 20 shows that he sustained a wound in the form of a broken lower right leg on 29 March 1967.  Item 40 also shows the applicant sustained a gunshot wound to his left hand on 29 May 1967.

8.  The applicant's name appears twice on the Vietnam Casualty Roster indicating that he sustained wounds on 29 March 1967 and 29 May 1967.

9.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded or authorized to wear the Republic of Vietnam Campaign Medal, the Vietnam Service Medal, the National Defense Service Medal, the Combat Infantryman Badge, the Purple Heart (2nd Award), the Bronze Star Medal, the Bronze Star Medal with "V" Device, the Good Conduct Medal (1st Award), and two Overseas Service Bars.
10.  The applicant's available record is void of any evidence that he sustained a wound on 29 July 1967.

11.  According to the website maintained by the United States Army Center of Military History, Operation Junction City took place during the period of 22 February 1967 through 14 May 1967.

12.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows unit awards received by units serving in the Republic of Vietnam.  This pamphlet shows the unit the applicant was assigned to while serving in the Republic of Vietnam was cited for award of the Valorous Unit Award for the period of 6 October through 10 December 1967 based on Department of the Army General Orders Number 32, dated 1973.

13.  Department of the Army Pamphlet 672-3 shows the unit the applicant was assigned to while serving in the Republic of Vietnam was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period of 12 July 1965 through 16 October 1968 based on Department of the Army General Orders Number 21, dated 1969.

14.  Department of the Army Pamphlet 672-3 shows the unit the applicant was assigned to while serving in the Republic of Vietnam was cited for award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for actions during the period of 12 July 1965 through 7 April 1970 by Department of the Army General Orders Number 53, dated 1970.

15.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Vietnam Service Medal.  This medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.  Appendix B of this regulation shows the 
campaigns for Vietnam.  During the applicant's tour of duty in the Republic of Vietnam he participated in two campaigns:  Vietnam Counteroffensive Phase II and Vietnam Counteroffensive Phase III.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

16.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a direct 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 by military medical personnel, and the medical treatment must have been made a matter of official record.
17.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he should be awarded an additional Purple Heart and that his record should be corrected to show any additional awards to which he is entitled was carefully considered and determined to have partial merit.

2.  General orders show the applicant's unit was awarded the Valorous Unit Award for actions during his tenure of assignment.  Therefore, he is entitled to have his records corrected to show this unit award.

3.  Special Orders awarded the applicant the Sharpshooter Marksmanship Qualification Badge with Rifle Bar [M-14 Rifle].  Therefore, he is entitled to have his records corrected to show this badge.

4.  Special Orders awarded the applicant the Sharpshooter Marksmanship Qualification Badge with Machinegun Bar [M-60].  Therefore, he is entitled to have his records corrected to show badge.

5.  General orders show the applicant's unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation for actions during his tenure of assignment.  Therefore, he is entitled to have his records corrected to show this unit award.

6.  General orders show the applicant's unit was awarded the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for actions during his tenure of assignment.  Therefore, he is entitled to have his records corrected to show this unit award.



7.  Records show the applicant participated in two campaigns while serving in the Republic of Vietnam.  The record also shows the applicant was previously awarded the Vietnam Service Medal.  Therefore, he is entitled to award of two bronze service stars to be affixed to his previously awarded Vietnam Service Medal and he is entitled to correction of his records to show this addition.

8.  The Vietnam Casualty Roster does not show the applicant sustained a wound on any date other than 29 March 1967 and 29 May 1967.  Additionally, his available record does not contain any evidence and he has failed to provide any evidence that shows he sustained a wound on 29 July 1967.  Furthermore, evidence shows Operation Junction City took place during the period of 22 February 1967 through 14 May 1967.  Therefore, there is a discrepancy in the applicant's contention.

9.  In the absence of evidence that the applicant was wounded or injured as a result of hostile action on any date other than 29 March 1967 and 29 May 1967 there is insufficient evidence upon which to base award of the Purple Heart in this case.  As a result, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  

10.  In the absence of evidence to the contrary, administrative regularity is presumed in the applicant's case.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement as pertains to award of the Purple Heart (3rd award).  This action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  

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 adding the following awards to item 24 of the applicant's DD Form 214:

	a.  the Valorous Unit Award;

	b.  the Republic of Vietnam Gallantry Cross with Palm Unit Citation;

	c.  the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation;

	d.  two bronze service stars to be affixed to his previously-awarded Vietnam Service Medal;

	e.  the Sharpshooter Marksmanship Qualification Badge with Rifle Bar [M-14 Rifle]; and

	f.  the Sharpshooter Marksmanship Qualification Badge with Machinegun Bar [M-60].

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 (3rd award).



      _______ _   __XXX_____   ___
               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)                                         AR20090003758



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ABCMR Record of Proceedings (cont)                                         AR20090003758



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