IN THE CASE OF:	  

		BOARD DATE:	       17 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090005755 


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 that his award of the Purple Heart be included on his DD Form 214 (Report of Transfer or Discharge).

2.  The applicant states he was wounded in Vietnam and awarded the Purple Heart but it was not recorded on his DD Form 214. 

3.  The applicant provides a copy of a Veterans' Service Commission of Belmont County, St Clairsville, OH letter of transmittal from the County Veterans Service Officer; a VA Form 21-4138 (Department of Veterans Affairs - Statement in Support of Claim), and his DD Form 214 in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests consideration of the applicant's request to show he was awarded the Purple Heart.

2.  Counsel states, in effect, that the applicant informed him that he was awarded the Purple Heart for wounds sustained while serving in Vietnam in 1970.

3.  Counsel provides no additional supporting documentation.

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 Army of the United States and entered active duty on 2 December 1968.  He completed training and he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant's available service medical records contain a DA Form 8-275-3 (Clinical Record Cover Sheet), dated 22 August 1969 and an AF Form 565-4 (Clinical Record Cover Sheet), dated 30 August 1969.  Both documents show the applicant was wounded in action as a result of a gunshot wound to his left flank when his unit was ambushed on 21 August 1969.  The wound required he be hospitalized for debridement and suturing.

4.  The DA Form 8-275-3 by the 95th Evacuation Hospital further states that no Purple Heart was awarded to the applicant by this hospital.  Records show he was subsequently transferred to the 12th U.S. Air Force Hospital for further treatment.

5.  Headquarters, Americal Division, General Order Number 7089, dated 24 June 1970, awarded the applicant the Army Commendation Medal.

6.  The applicant was honorably released from active duty on 4 July 1970 as an overseas returnee with 1 year, 7 months, and 3 days of creditable active service.

7.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD From 214 lists his awards as the National Defense Service Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, Marksman Marksmanship Qualification Badge with Rifle and Machinegun Bars, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Combat Infantryman Badge, and
2 Overseas Service Bars.

8.  His DA Form 20 (Enlisted Qualification Record) provides the following:

	a.  block 2 (Grade), shows he was advanced to specialist four (SP4)/E-4;
	b.  block 38 (Record of Assignments), shows he was assign to Company B, 3rd Battalion, 21st Infantry Regiment, 196th Infantry Brigade from 15 May 1969 through 30 June 1970;

	c.  block 38 also shows the applicant received "excellent" conduct and efficiency ratings through his service assignments;

	d.  block 39 (Campaigns), shows he participated in two campaigns;

	e.  block 40 (Wounds), shows the entry he received a gunshot wound to his left flank on 21 August 1969; and

	f.  block 41 (Awards and Decorations), shows award of the National Defense Service Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, Vietnam Service Medal, Combat Infantryman Badge, and the Republic of Vietnam Campaign Medal with Device (1960).

9.  The record contains no documentation of any disciplinary actions or derogatory information pertaining to the applicant.

10.  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, failed to reveal any orders for any awards pertaining to the applicant.

11.  Army Regulation 600-8-22 (Military Awards), provides the following;

	a.  the Purple Heart is awarded to an individual who is wounded in action against an enemy of the United States, the armed force of a foreign country which is or has been engaged, while serving with a friendly foreign forces against an opposing force even though the U.S. is not engaged, as the result of any act of such enemy or opposing force or as a result an act of any hostile foreign force. 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; 

	b.  the Good Conduct Medal 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.  Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified.  Current practice requires that the commander provide written notice of nonfavorable consideration and permits the individual to respond.  At that time, unfavorable consideration was normally noted on the DA Form 20.  A record of punishment is not automatically disqualifying.  However, at that time, a single efficiency rating of less than excellent was disqualifying; and

	c.  a bronze service star is authorized, based on qualifying service, for each designated campaign listed in Appendix B of the regulation and states that authorized service stars will be worn on the appropriate campaign or service medal.  The regulation also lists the designated campaign periods for which a bronze service star is authorized for wear on the Vietnam Service Medal.  Based on the applicant's dates of service in Vietnam, Appendix B indicates he participated during the following four campaign periods:  Tet 69 Counteroffensive, 1969 (23 February 1969 – 8 June 1969); Vietnam Summer - Fall 1969 (9 June 1969 – 31 October 1969); Vietnam Winter - Spring 1970 (1 November 1969 – 30 April 1970); and DA Sanctuary Counteroffensive (1 May 1970 – 30 June 1970).

11.  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 while the applicant was assigned to Company B, 3rd Battalion, 21st Infantry Regiment, the unit was cited for award of the Valorous Unit Award (13 May - 17 June 1969) based on Department of the Army General Orders (DAGO) Number 43, dated 1972; Republic of Vietnam Gallantry Cross with Palm Unit Citation (16 April - 28 August 1969) based on DAGO Number 6, dated 1974; and Republic of Vietnam Gallantry Cross with Palm Unit Citation (24 August - 31 December 1969 and 31 March - 30 June 1970, based on DAGO Number 42, dated 1972.

12.  Department of the Army Pamphlet 672-3 further states that not more than one Republic of Vietnam Gallantry Cross Unit Citation will be worn by any individual.  Although wear of multiple awards of this unit badge is not authorized, official military personnel and historical records will indicate all awards received.  In those instances where a single unit received duplicate Vietnamese unit awards during the same period only one will be recorded in official military personnel and historical records.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was wounded in Vietnam in 1970 and awarded the Purple Heart but it was not recorded on his DD Form 214.

2.  The evidence of record clearly shows the applicant was wounded in action on 21 August 1969, he received treatment for this wound, and that the treatment was made a matter of official record.  The hospital that provided the initial treatment indicated they did not award the applicant the Purple Heart for this wound.  Therefore, it would be appropriate to award the applicant the Purple Heart for wounds received as a result of hostile action on 21 August 1969 and correct his record to show this award.

3.  The applicant was awarded the Army Commendation Medal at approximately the same time as he was released from active duty.  This award was not recorded on his DD Form 214.  Therefore, it would be appropriate to correct his record to show this award.

4.  The applicant distinguished himself by his conduct, efficiency, and fidelity as evidenced by his combat service, his "excellent" conduct and efficiency ratings, his personal decorations, and his advancement SP4/E-4.  The record contains no indication of any disciplinary actions or a commander's disqualification.  Therefore, it would be appropriate to award the applicant the Good Conduct Medal (first award) for his period of service from 2 December 1968 through 4 July 1970.

5.  The applicant served during four campaign periods in Vietnam.  Therefore, he is authorized four bronze service stars for wear on his already-awarded Vietnam Service Medal.

6.  The applicant is also entitled to award of the Valorous Unit Award and three awards of the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, his record should be corrected to show these unit awards.

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.  deleting from item 24 of his DD Form 214 the Vietnam Service Medal;

   b.  awarding the applicant the Purple Heart for wounds received as a result of hostile action on 21 August 1969;

	c.  awarding the applicant the Good Conduct Medal (first award) for the period 2 December 1968 through 4 July 1970; and 

	d.  adding to item 24 of his DD Form 214 the Purple Heart, Army Commendation Medal, Good Conduct Medal (first award), Vietnam Service Medal with four bronze service stars, Valorous Unit Award, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation (three 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)                                         AR20090005755



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ABCMR Record of Proceedings (cont)                                         AR20090005755



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