IN THE CASE OF:	  

		BOARD DATE:	        20 AUGUST 2009

		DOCKET NUMBER:  AR20090006453 


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 he be awarded a second Purple Heart.

2.  The applicant states, in effect, that he was wounded on 14 March 1968.  He was hit in the lower back by a piece of ricocheted bullet.  He currently has a retained foreign body of shrapnel in his back.  He adds that he was wounded twice while in Vietnam and received only one Purple Heart.  He feels the evidence shows he is entitled to a second Purple Heart.

3.  In support of his request, the applicant provides in support of his request a Department of Veterans Affairs (VA) Radiology Report, dated 18 January 2006; a personal statement; and an internet article.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's record be corrected to include a second Purple Heart.

2.  Counsel states, in effect, that the applicant was wounded in the back by a piece of shrapnel on 14 March 1968 and still retains foreign bodies in his lower back.

3.  Counsel provides no additional documentary evidence in support of the applicant's request other than a statement of support.


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 records show he enlisted in the Regular Army on 31 August 1967.  He completed basic combat training at Fort Campbell, Kentucky, and his advanced individual training at Fort Polk, Louisiana.  On completion of training, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant served in Vietnam from 12 February through 6 June 1968, with Troop B, 3rd Squadron, 4th Cavalry Regiment, 25th Infantry Division.  The applicant was medically evacuated and was assigned to the Medical Holding Detachment, 106th General Hospital in Japan on 6 June 1968 and was subsequently medically evacuated to the Medical Holding Company, Letterman General Hospital, San Francisco, California, on 12 June 1968.  The applicant did not return to Vietnam to complete his tour of duty.

4.  The applicant was honorably released from active duty, on 13 July 1970, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), to enter or return to college, university, or equivalent educational institution.  He was separated in the rank/pay grade of Specialist Four, E-4.  On the date he was released from active duty, he had completed
2 years, 10 months, and 13 days of active military service and he had no lost time.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), of the applicant's DD Form 214 shows he was awarded:  the National Defense Service Medal, the Vietnam Service Medal with two bronze service stars, the Republic of Vietnam Campaign Medal with Device (1960), the Sharpshooter Marksmanship Qualification Badge with Pistol Bar, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16 Rifle) and the Expert Marksmanship Qualification Badge with Rifle Bar
(M-14 Rifle).  The applicant’s authorized awards do not include the Purple Heart or a Purple Heart (2nd Award).

6.  An entry in item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he received a fragmentation wound to the left arm on 25 May 1968.  There is no entry in item 40 to show he was wounded as a result of enemy action on 14 March 1968.

7.  There is no entry in item 41 (Awards and Decorations) of the applicant's DA Form 20 showing he was awarded the Purple Heart or the Purple Heart (2nd Award).

8.  General Orders Number 131, Headquarters, U.S. Darnell Army Hospital, Fort Hood, Texas show the applicant was awarded the Purple Heart for wounds received in connection with military operations against a hostile force on 24 May 1968.  There are no orders in the applicant's military personnel records awarding him a second Purple Heart.

9.  The applicant's name appears on the Vietnam casualty list two times with casualty status codes 33 and 23.  The entries show the applicant was wounded in action on 25 May 1968 and the second entry shows he was medically evacuated from Vietnam as a result of his wounds.

10.  Review of the Awards and Decorations Computer-Assisted Retrieval System, 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 awarding the applicant the Purple Heart or the Purple Heart (2nd Award).

11.  In his personal statement, the applicant reiterates that he is seeking a Purple Heart for a wound that he received in the back and that he still carries metallic shrapnel as a result of this wound.  He also indicates that he was wounded in the vicinity of the right side of the Mountain of the Black Virgin and jungle and it could have been in Cambodia.  He continues by giving the names of two fellow Soldiers who lost their lives on 14 March 1968 and whose bodies he helped to load on a helicopter for evacuation from the battlefield.

12.  The applicant's service medical records are not available for the Board's review.  These records were put on loan to the VA Center, Fort Snelling, Minnesota, for an indefinite period on 13 July 1970.


13.  The Radiology Report, dated 18 January 2006, that was submitted by the  applicant indicates in pertinent part a "Review of the bone window shows no lytic or blastic lesions.  There is metallic shrapnel posterior to the right gluteus maximus."

14.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows the applicant consistently received "excellent" conduct and efficiency ratings throughout his period of military service.  There is no evidence of any breach of good order or discipline in his service personnel record that would preclude award of the Good Conduct Medal.

15.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register), which lists unit awards received by units serving in Vietnam, shows the unit the applicant was assigned to was awarded:  the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period March 1966 through August 1968, by Department of the Army General Orders (DAGO) Number 48, dated 1971; and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 15 March 1966 through 21 January 1970, by DAGO Number 51, dated 1971.

16.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

17.  Army Regulation 672-5-1 (Awards), in effect at the time, provided that the Good Conduct Medal was awarded to individuals who distinguished themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service.  This period was 3 years except in those cases when the period for the first award ended with the termination of a period of Federal military service.  Although there was no automatic entitlement to the Good Conduct Medal, disqualification was required to be justified.  To be eligible for award of the Good Conduct Medal, Soldiers were required to meet all of the following criteria:  all conduct (character) and efficiency ratings were to be recorded as "Excellent" except that ratings of "Unknown" for portions of the period under consideration were not disqualifying.  Service school efficiency ratings based upon academic proficiency of at least "Good" rendered subsequent to 22 November 1955 were not disqualifying.




18.  Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia), chapter 29, prescribes policy and guidance for wear of U.S. and foreign unit awards. This regulation states that a Soldier may wear the unit award permanently if the individual was assigned to, and present for duty with the unit any time during the period cited; or was attached by competent orders to, and present for duty with the unit during the entire period, or for at least thirty consecutive days of the period cited.

DISCUSSION AND CONCLUSIONS:

1.  To be awarded the Purple Heart, substantiating evidence must be presented to show the Soldier was wounded as a result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

2.  The evidence shows the applicant was wounded as a result of enemy action on 24 May 1968 and he was awarded the Purple Heart.  However, the Purple Heart was inadvertently omitted from his DD Form 214 at the time of his release from active duty.  This Purple Heart should be added to the applicant's DD Form 214.

3.  The applicant provided no record of medical treatment for a wound he alleges to have sustained in the back on 14 March 1968.  The applicant's name appears on the Vietnam casualty listing; but, the listings show he was wounded in action on 24 May 1968 and that he was medically evacuated from Vietnam as a result of this wound.  There were no entries made in his service personnel records to show he was wounded as a result of hostile action a second time.

4.  The applicant is therefore is not entitled to a correction of his DD Form 214 to show he was awarded the Purple Heart for a wound he sustained on 14 March 1968.

5.  The Radiologist Report that the applicant provided was conducted in 2006 almost 40 years after the fact.  It was not conducted at the time the applicant was allegedly wounded in action; his diagnosis and summary could only have been prepared based on the applicant's account of what he stated happened in Vietnam in 1968.  The report is not corroborated by any other available evidence.  In addition, the report does not indicate the shrapnel was a result of enemy activity or when and where it became lodged in his lower back.  

6.  The applicant had "excellent" conduct and efficiency ratings throughout his time in the Army.  There is no evidence of indiscipline while he served on active duty.  The applicant was not recommended for award of the Good Conduct Medal, it appears, more as a result of an administrative oversight rather than something he did to disqualify himself for this award.  Therefore, he is eligible for award of the Good Conduct Medal for the period from 31 August 1967 through 13 July 1970.

7.  The applicant served in a unit which was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation while he was a member of the unit.  These foreign unit awards are not shown on his DD Form 214.  He is entitled to wear these unit awards and to have them added to his DD Form 214.

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.  adding the already-awarded Purple Heart to the applicant's DD Form 214;

	b.  awarding the applicant the Army Good Conduct Medal for the period 
31 August 1967 through 13 July 1970 and adding this award to his DD Form 214; and 

	c.  adding the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation to his DD Form 214.








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 awarding the applicant a second Purple Heart and addition of this award to his DD Form 214.



      _______ _   _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)                                         AR20080014024



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ABCMR Record of Proceedings (cont)                                         AR20090006453



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