IN THE CASE OF:	  

		BOARD DATE:	      18 AUGUST 2009

		DOCKET NUMBER:  AR20090004870 


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 records to show he served in the Republic of Vietnam (RVN) and that he was awarded the Purple Heart.

2.  The applicant states that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows award of the Vietnam Service Medal, but the Remarks section of the form contains the statement "VN Service:  None."  He also states he was serving at Cinderella City in the RVN rebuilding bunkers when a rocket propelled grenade (RPG) hit the bunker.  He was blown off the bunker and he received a wound to his inner thigh.  The applicant further states he was medically evacuated to the Cu Chi hospital and then on to Cam Ranh Bay for further evaluation of his condition; however, he was not awarded the Purple Heart in the hospital.  He adds that he understands things get lost by commanders and doctors; however, he requests a review of the incident and injury, and award of the Purple Heart.

3.  The applicant provides, in support of his application, a self-authored statement; DD Form 214; DA Form 20 (Enlisted Qualification Record); two Standard Forms (SFs) 88 (Report of Medical Examination); Headquarters and Headquarters Company, 3rd Battalion, 1st Basic Combat Training Brigade, Fort Ord, California, Disposition Form; two SFs 513 (Clinical Record - Consultation Sheets); two SFs 502 (Clinical Record - Narrative Summary); SF 521 (Clinical Record - Dental); DA Form 8-272-2 (Clinical Record Cover Sheet); SF 89 (Report of Medical History); SF 601 (Health Record - Immunization Record); and Department of Veterans Affairs (VA), Regional Office, Denver, Colorado letter.

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 was inducted into the U.S. Army and entered active duty for a period of 24 months on 17 September 1968.  Upon completion of training, he was awarded military occupational specialty 13A (Field Artillery Basic).

3.  The applicant's DA Form 20 shows in:

   a.  Item 31 (Foreign Service) that he served overseas in the Republic of Vietnam (RVN) from 8 February through 19 June 1969 and in the Republic of Korea (ROK) from 17 July 1969 through 18 April 1970.

   b.  Item 38 (Record of Assignments), in pertinent part, the applicant was assigned to Company C, 1st Battalion, 18th Artillery, 25th Infantry Division (USARPAC, RVN), from 17 February through 9 March 1969.  This item also shows he was assigned to the 106th General Hospital, Kinshine in the RVN in a patient status from 10 March to 18 June 1969.  He was then assigned to
C Battery, 6th Battalion, 12th Artillery (ROK), from 17 July 1969 through 14 April 1970.

   c.  Item 39 (Campaigns) no entry.
   
   d.  Item 40 (Wounds) no entry.

   e.  Item 41 (Awards and Decorations) he was awarded the Good Conduct Medal, National Defense Service Medal, Vietnam Service Medal, Armed Forces Expeditionary Medal, Expert Marksmanship Qualification Badge with
(M-14) Rifle Bar, and Sharpshooter Marksmanship Qualification Badge with
(M-16) Rifle Bar.

4.  There is no documentation in the applicant’s military personnel records that shows he was wounded or treated for wounds as a result of hostile action and his name is not listed on the Vietnam Casualty Roster.

5.  A review of the applicant’s military personnel records revealed that there are no orders or other evidence in the applicant’s records that show he was awarded the Purple Heart.

6.  The applicant's DD Form 214 shows was honorably released from active duty, on 19 April 1970, and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining military service obligation.  At the time he had completed 1 year, 7 months, and 3 days of net active service.  The DD Form 214 also shows the following:
  
a. Item 22c (Foreign and/or Sea Service) shows he completed 1 year, 
1 month, and 14 days of foreign service and also contains the entry "USARPAC."
   
   b.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the National Defense Service Medal, Expert Marksmanship Qualification Badge with (M-14) Rifle Bar, Vietnam Service Medal, Sharpshooter Marksmanship Qualification Badge with (M-16) Rifle Bar, Armed Forces Expeditionary Medal, and Good Conduct Medal.

   c.  Item 30 (Remarks), in pertinent part, contains the entry "VN SERVICE:  NONE."

7.  In support of his application, the applicant provides the following documents: 

   a.  A Report of Medical Examination, dated 17 September 1968, that shows the applicant was qualified for induction/enlistment.

	b.  A Disposition Form, dated 21 November 1968, shows the Commander, Headquarters and Headquarters Company, 3rd Battalion, 1st Basic Combat Training Brigade, Fort Ord, California, requested a waiver of the applicant’s temporary profile based on his demonstrated ability to undergo advanced individual training.

   c.  A Clinical Record - Consultation Sheet, dated 26 November 1968, and Clinical Record - Narrative Summary, dated 2 December 1968, that show, in pertinent part, the applicant was admitted to the U.S. Army Hospital, Fort Sill, Oklahoma, on 26 November 1968, for treatment of swelling and pain in his right testicle, and that he was discharged from the hospital on 2 December 1968.
	d.  A Clinical Record - Dental, dated 27 May 1969, that documents the applicant’s dental treatment on that date.

	e.  A Clinical Record - Narrative Summary, dated 9 June 1969, that shows the applicant was admitted to the 106th General Hospital (USARPAC, RVN) on
10 May 1969.  This document also shows the applicant initially injured his right knee, on 10 April 1969, when he fell into a bunker and noticed swelling and felt pain in the right knee and thigh.  He was hospitalized for a period of 10 days at the 12th Evacuation Hospital and then returned to duty.  This document further shows that, on 5 May 1969, he reinjured the knee and thigh area when he was blown off a bunker.  He was rehospitalized at the 12th Evacuation Hospital with swelling, pain, and discoloration of the medial aspect of his right thigh.

   f.  A Clinical Record Cover Sheet, dated 13 June 1969, that shows the applicant was diagnosed, in pertinent part, with a contusion of his right thigh, no nerve or artery involvement.  This document also shows the applicant stated he was injured as a result of hostile action at 1400 hours, on 5 May 1969, at Cu Chi RVN, when he was blown off a bunker by an RPG explosion.  Item 25 (Selected Administrative Data), in pertinent part, contains the statement "Purple Heart not awarded at this hospital."  The document was signed by the attending physician and by the registrar or medical records officer.

   g.  A Clinical Record - Consultation Sheet, dated 30 July 1969, that documents the applicant’s medical treatment and, in pertinent part, states the applicant was injured in the RVN, had been in Japan for 2 months, and he just recently arrived in the ROK.
   
   h.  A Report of Medical History, dated 10 February 1970, that the applicant completed during his separation medical examination that shows the applicant indicated he was in excellent health.
   
   i.   A Report of Medical Examination, dated 10 February 1970, administered for the purpose of the applicant’s separation medical examination.  Item 74 (Summary of Defects and Diagnoses) shows the examining physician entered, "[r]ight hernia repaired" and "[p]enicillin allergy."  Item 77 (Examinee) shows the examining physician found the applicant qualified for separation.
   
   j.  A Health Record - Immunization Record, dated 3 April 1970, that documents the immunizations the applicant received during his military service.
   
   k.  A VA, Regional Office, Denver, Colorado, letter, dated 20 February 2009, that shows the VA provided the applicant copies of his service treatment records.
8.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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 by medical personnel, and the medical treatment must have been made a matter of official record.

9.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards), in pertinent part, provided guidance for award of the Purple Heart in the USARV theater of operations.  The regulation stated, in pertinent part, that authority to award the Purple Heart was delegated to hospital commanders.  It also directed that all personnel treated and released within 24 hours would be awarded the Purple Heart by the organization to which the individual was assigned.  Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam would be awarded the Purple Heart directly by the hospital commander rendering treatment.

10.  A review of the applicant's military personnel records reveal he may be authorized additional awards that are not shown on his DD Form 214:

   a.  Appendix B of Army Regulation 600-8-22 (Military Awards) lists campaigns for Vietnam.  This document shows that the applicant served in the RVN during the Vietnam Counteroffensive Phase VI, Tet 1969 Counteroffensive, and Vietnam Summer-Fall 1969 campaigns; a total of three campaigns.  This regulation also provides, in pertinent part, for award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal, including the Vietnam Service Medal.

   b.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This document shows that at the time of the applicant's assignment to Company C, 1st Battalion, 18th Artillery, 25th Infantry Division (USARPAC, RVN), the battalion was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Headquarters, Department of the Army, General Orders Number 5 (1973).  This document also shows that at the time of his assignment, the unit was awarded the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation by Headquarters, Department of the Army, General Orders Number 51 (1971).

   c.  Army Regulation 600-8-22 states the Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the ROK. The area of eligibility encompasses all land area of the ROK, and the contiguous water out to 12 nautical miles and all air spaces above the land and water area.  The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense.  Service members must have been assigned, attached, or mobilized to units operating in the area of eligibility for 30 consecutive or 60 nonconsecutive days.

11.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.  This Army regulation states that the purpose of a separation document is to provide the individual with documentary evidence of their military service at the time of separation.  Therefore, it is important the information entered thereon is complete and accurate as of that date.  It also provides the following:

   a.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders.

   b.  Paragraph 51 (Item 22c), subparagraph b (Enlisted Personnel), in pertinent part, states enter total active duty outside continental limits of the United States for the period covered by the DD Form 214 and the last oversea theater where service was performed (e.g., "Foreign and/or Sea Service (USARPAC)").

   c.  Paragraph 53 (Item 24) states, in pertinent part, list all decorations, service medals, campaign medals, and badges awarded or authorized, omitting authorities cited therein.

   d.  Paragraph 62 (Item 30) states the "Remarks" section will be used to complete entries too long for their respective blocks.  This paragraph also instructs, in pertinent part, to enter inclusive dates of service in Vietnam during current period of service.






DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show he served in the RVN in 1969 and he was awarded the Purple Heart due to a wound that he received to his inner thigh on 5 May 1969 while serving in the RVN.

2.  The Separation Documents regulation provides guidance on documenting the inclusive dates of service in the RVN during the current period of service on the DD Form 214.  Records show the applicant served in the RVN from 8 February to 19 June 1969; however, item 30 of his DD Form 214 fails to document his service in Vietnam.  Therefore, it would be appropriate to correct the applicant's DD Form 214 to show the inclusive dates of his service in Vietnam (i.e., 
8 February 1969 to 19 June 1969).

3.  The applicant’s contention concerning the Purple Heart was carefully considered.  The applicant provides no official documentary evidence (e.g., casualty report, medical treatment records, witness statement, etc.) proximate to the date of the incident (i.e., 5 May 1969) to substantiate his wound was the result of hostile action and that the wound required treatment by medical personnel at that time:

	a.  The medical records the applicant provides show he initially injured his right knee on 10 April 1969 when he fell into a bunker, noticed swelling and pain on the right knee and thigh, and was hospitalized for a period of 10 days.

   b.  The medical records show the applicant complained of pain and swelling of his right thigh when he reinjured the knee and thigh area when he was blown off a bunker on 5 May 1969.  These records also show the applicant was hospitalized at the 12th Evacuation Hospital, transferred to the 106th General Hospital on 10 May 1969, and discharged on 9 June 1969.  It is noted that the Clinical Record Cover Sheet, dated 13 June 1969, contains the only reference to the applicant being injured as a result of hostile action, and this is based on the applicant’s statement to medical officials.
   
4.  The evidence of record shows that the USARV Decorations and Awards regulation provided that personnel requiring hospitalization in excess of 24 hours or those that were evacuated from Vietnam were awarded the Purple Heart directly by the hospital commander rendering treatment.  It is noted that the applicant’s medical records contain the entry, "Purple Heart not awarded at this hospital."


5.  There is no evidence in the applicant’s military personnel records that shows he was wounded as a result of hostile action; his DA Form 20 does not list the Purple Heart in item 41; the applicant's name is not listed on the Vietnam Casualty Roster; and there are no orders in the applicant’s military personnel records or in the U.S. Army Human Resources Command, Awards and Decorations Computer Assisted Retrieval System, that show the applicant was awarded the Purple Heart.  In addition, there is no evidence of record (e.g., battle casualty report, witness statement(s), etc,) that conclusively shows the applicant was wounded as a result of hostile action.  Therefore, in view of all of the foregoing, there is insufficient evidence to support award of the Purple Heart in this case.

6.  Records show the applicant qualified for award of the Vietnam Service Medal and he participated in three campaigns during his service in the RVN.  Therefore, it would be appropriate to correct his DD Form 214 to show award of three bronze service stars to be affixed to his Vietnam Service Medal.

7.  Records show the applicant qualified for award of the Korea Defense Service Medal for his service in the ROK from 17 July 1969 to 18 April 1970.  Therefore, it would be appropriate to correct his records to show this service medal.

8.  Records show that general orders awarded the applicant's unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, it would be appropriate to correct his records to show this foreign unit award.

9.  Records show that general orders awarded the applicant's unit the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  Therefore, it would be appropriate to correct his records to show this foreign unit award.

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 from item 24 of his DD Form 214 the entry, "VSM";
   
   b.  adding to item 24 of his DD Form 214 the Vietnam Service Medal with three bronze service stars, Korea Defense Service Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation;
   
   c.  deleting from item 30 of his DD Form 214 the entry, "VN SERVICE:  NONE"; and

   d.  adding to item 30 of his DD Form 214 the entry, "SERVICE IN VIETNAM:
8 FEBRUARY 1969 - 19 JUNE 1969/ /NOTHING FOLLOWS."

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 the Purple Heart.  




      _______ _   _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)                                         AR20090004870



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ABCMR Record of Proceedings (cont)                                         AR20090004870



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