IN THE CASE OF:	  

		BOARD DATE:	      18 AUGUST 2009

		DOCKET NUMBER:  AR20090004826 


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 awarded the PH for wounds sustained during the incident cited in the orders that awarded him the Bronze Star Medal (BSM) with "V" (Valor) Device.

3.  The applicant provides BSM with "V" Device orders 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 of the United States and entered active duty on 5 October 1966 and was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 29 September 1967 through 22 September 1968.  Item 38 (Record of Assignments) shows that during his RVN tour he was assigned to Company C, 2nd Battalion, 502nd Infantry Regiment, performing duties in MOS 11B.  It further 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 that indicates he received fragment wounds to his eye on 30 March 1968.  Item 41 (Awards and Decorations) shows he earned the National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), Parachutist Badge, Combat Infantryman Badge (CIB), Marksman Marksmanship Qualification Badge with Rifle Bar, and Expert Marksmanship Qualification Badge with Mortar Bar.

5.  The applicant's official military personnel file (OMPF) contains a casualty report message and Western Union notification telegram, dated 1 April 1968, which show he was wounded in action in the RVN on 30 March 1968 when he received a metal fragment wound under his left eye while on a combat operation when he was hit by fragments from a hostile rocket round.  It also contains Headquarters, 101st Air Cavalry Division, General Orders Number 4651, dated 12 August 1968, which awarded him the BSM with "V" Device for heroism in ground combat against a hostile force in the RVN on 30 March 1968.  The citation in these orders indicates the applicant was wounded during the action for which he received this award.

6.  The applicant's OMPF is void of any derogatory information or a unit commander disqualification that would have precluded award of the Army Good Conduct Medal (AGCM).

7.  On 27 September 1968, the applicant was honorably released from active duty in the rank of specialist four after completing 1 year, 11 months, and 23 days of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he earned the following awards:  NDSM, RVN Campaign Medal, VSM, CIB, and BSM with "V" Device.

8.  During the processing of this case, a member of the Board staff reviewed the Department of the Army Vietnam Casualty Reference Name Listing.  This roster contains an entry confirming the applicant was wounded in action in the RVN on 30 March 1968.

9.  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, that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that it required treatment by military medical personnel, and a record of this treatment must have been made a matter of official record.

10.  Paragraph 2-13 of Army Regulation 600-8-22 contains guidance on the VSM and states, in pertinent part, 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.

11.  Chapter 4 of Army Regulation 600-8-22 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.

12.  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 (2nd Battalion, 502nd Infantry Regiment) received the RVN Gallantry Cross with Palm Unit Citation and RVN Civil Actions Honor Medal First Class Unit Citation.  It also confirms that during this period participation credit was granted for the Vietnam Counteroffensive Phase III, TET Counteroffensive, Vietnam Counteroffensive Phase IV, and Vietnam Counteroffensive Phase V campaigns.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the PH was carefully considered and found to have merit.  The evidence of record includes a casualty report message and notification telegram that confirm the applicant was wounded in action in the RVN on 30 March 1968.  This information is corroborated by an entry in item 40 of his DA Form 20, an entry on the Vietnam casualty roster and by the citation contained in his BSM with "V" Device award orders.  As a result, it would be appropriate to award the applicant the PH and to add it to his record and DD Form 214 at this time.

2.  The applicant's record confirms that he received "excellent" conduct and efficiency ratings at all of his active duty assignments.  Further, the record is void of derogatory information or a unit commander disqualification that would have precluded him from receiving the AGCM.  As a result, it would be appropriate to award the applicant the first award of the AGCM for his qualifying period of honorable active duty service from 5 October 1966 through 27 September 1968 and to add this award to his record and DD Form 214 at this time.

3.  The evidence of record also confirms that based on the applicant's RVN service and campaign participation, he is also eligible for the RVN Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit Citation, and four bronze service stars with his VSM.  It further shows that he also earned the Parachutist Badge, Expert Marksmanship Qualification Badge with Mortar Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar which were omitted from his DD Form 214.  Therefore, it would also be appropriate to add these awards to his 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 awarding him the Purple Heart for being wounded in action in the Republic of Vietnam on 30 March 1968 and the Army Good Conduct Medal for his qualifying period of honorable active duty service from 5 October 1966 through 27 September 1968; by adding the Purple Heart, Army Good Conduct Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, four bronze service stars with his Vietnam Service Medal, Parachutist Badge, Expert Marksmanship Qualification Badge with Mortar Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar to item 24 of his DD Form 214; and by providing him a correction to his DD Form 214 that includes these awards.



      _________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)                                         AR20090004826



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ABCMR Record of Proceedings (cont)                                         AR20090004826



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