IN THE CASE OF:	  

		BOARD DATE:	  14 July 2009

		DOCKET NUMBER:  AR20090004438 


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, award of the Purple Heart (PH).   

2.  The applicant states, in effect, he was wounded in action during a firefight with enemy forces in the Republic of Vietnam (RVN) on 28 January 1966. 

3.  The applicant provides a letter from his RVN unit’s executive officer, dated 
26 November 1966, in support of his application.  

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 and entered active duty on 9 December 1964, and he was initially trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman) on 23 April 1965.  He was later reclassified into MOS 94B (Cook) on 27 May 1966. 

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 6 January through 27 November 1966.  Item 38 (Record of Assignments) shows that during his RVN tour he was assigned to Company C and to Headquarters and Headquarters Company (HHC), 1st Battalion, 
27th Infantry Regiment, performing duties in MOS 11B as a rifleman, and in MOS 94B as a cook.  Item 38 also shows he received “excellent” conduct and efficiency ratings at all of his active duty assignments.  

4.  Item 40 (Wounds) of the applicant’s DA Form 20 contains an entry showing the applicant received a shrapnel wound and burns to the face on 28 January 1966.  Item 41 (Awards and Decorations) shows that during his active duty tenure he earned the National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), RVN Campaign Medal, and Combat Infantryman Badge (CIB).  

5.  The applicant’s Official Military Personnel File (OMPF) is void of any derogatory information or a unit commander disqualification that would have precluded the applicant from receiving the Army Good Conduct Medal (AGCM).  It is also void of any orders awarding him the PH.  

6.  On 27 November 1966, the applicant was honorably released from active
duty (REFRAD), in the rank of specialist four (SP4), after completing 1 year, 
11 months, and 19 days of active military service.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued upon his REFRAD shows, in item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), that he earned the following awards during his active duty tenure:  NDSM, RVN Campaign Medal, CIB.  

7.  The applicant provides a letter from the executive officer of his unit in the RVN, dated 26 November 1966.  This letter confirms that while a member of the rifle platoon in Company C, the applicant was wounded on a combat operation and as a result of his wounds, he was reassigned to the HHC mess hall as a cook.  

8.  The applicant’s name is not included on the Vietnam Casualty Roster. 

9.  Army Regulation 600-200, chapter 9 of the version in effect at the time, stated, in pertinent part, that a brief description of the wounds or injuries, (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization, would be entered in item 40 of the DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in item 40.  

10.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-8 contains guidance on award of the PH.  It states, in pertinent part, in order to support award of the PH there must be evidence confirming that the wound for which the award is being made was received as 
a result of enemy action, that it required treatment by medical personnel, and a record of this treatment must have been made a matter of official record.  

11.  Paragraph 2-13 of the awards regulation contains guidance on the VSM and states, in pertinent part, that it is authorized for any period of service in the RVN between 3 July 1965 through 28 March 1973.  It further stipulates that a bronze service star is authorized with this award for each campaign a member is credited with participating in while serving in the RVN.  

12.  Table B-1 of the awards regulation contains a list of campaigns and shows that during the applicant’s tenure of assignment in the RVN, participation credit was granted for the Vietnam Counteroffensive and Vietnam Counteroffensive Phase II campaigns. 

13.  Chapter 4 of the awards regulation prescribes the policy for award of the 
AGCM.  It states, in pertinent part, that the AGCM is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years, except in those cases when the period for the first award ends with the termination of a period of Federal military service, in which case a period of more than 1 year is a qualifying period.  Although there is no automatic entitlement to the AGCM, disqualification must be justified.  

14.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It confirms that during his tenure of assignment in the RVN, the applicant’s unit (1st Battalion, 27th Infantry Regiment) received the Valorous Unit Award (VUA), RVN Gallantry Cross with Palm Unit Citation and RVN Civil Actions Honor Medal First Class Unit Citation.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been awarded the PH for being wounded in action in the RVN on 28 January 1966 was carefully considered and found to have merit.  

2.  The applicant’s DA Form 20 contains an entry showing he received shrapnel wounds and burns to his face on 28 January 1966, while serving in the RVN.  Although there are no orders awarding the applicant the PH, medical treatment records confirming he was treated for the wound in question is not available, and his name is not listed on the Vietnam Casualty Roster, the entry in item 40 is sufficiently corroborated by the executive officer letter provided by the applicant, which confirms the applicant was wounded during a combat operation in the RVN and that the impact of his wounds resulted in his assignment out of the infantry.  As a result, it would be appropriate to resolve this matter in favor of the applicant and to award him the PH and add it to his record and DD Form 214 at this time.  

3.  The record is also void of any derogatory information or a unit commander disqualification that would have precluded him from receiving the AGCM.  Therefore, it would be appropriate to award him the AGCM for his qualifying honorable active duty service from 9 December 1964 through 27 November 1966 and to add this award to his record and DD Form 214.

4.  The evidence of record further shows that based on his RVN service and campaign participation, he is also eligible for the VUA, RVN Civil  Actions Honor Medal First Class Unit Citation, RVN Gallantry Cross with Palm Unit Citation, and 
2 bronze service stars to be worn with his VSM.  Therefore, it would also be appropriate to add these awards to his record and DD Form 214.  

BOARD VOTE:

____X___  ____X___  __X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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

	a.	awarding him the Purple Heart for being wounded in action in the Republic of Vietnam on 28 January 1966; 

	b.	by awarding him the Army Good Conduct Medal for his qualifying period of honorable active duty service from 9 December 1964 through 27 November 1966; 

	c.	amending item 26 of his DD Form 214 by deleting the current list of awards and replacing it with the entry “National Defense Service Medal, Purple Heart, Army Good Conduct Medal, Vietnam Service Medal with 2 bronze service stars, Republic of Vietnam Campaign Medal with Device 1960, Valorous Unit Award, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Combat Infantryman Badge”; and

	d.	by providing him a correction to his DD Form 214 that reflects these changes.  



      _______ _   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)                                         AR20090004438



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090004438



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1