IN THE CASE OF:	  

		BOARD DATE:	      17 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090007234 


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, that he was wounded in action in the Republic of Vietnam (RVN), which ultimately resulted in his discharge. 

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), DD Form 215 (Correction to the DD Form 214), Department of Veterans Affairs (VA) Form 21-6796 (Rating Decision), VA Form 21-6798 (Deferred or Confirmed Rating Decision), VA Form 07-3101 (Request for Information), and VA Form 21-526e (Veteran's Application for Compensation or Pension at Separation from Service) 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 9 September 1966.  He was trained in, awarded, and served in military occupational specialty (MOS) 11H (Infantry Direct Fire Crewman).

3.  Item 31 (Foreign Service) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 17 February 1967 to 1 January 1968.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company B, 1st Battalion, 35th Infantry Regiment.  It also shows he received no less than "excellent" conduct and efficiency ratings at each of his active duty assignments. 

4.  Item 40 (Wounds) of the applicant's DA Form 20 is blank and item 41 (Awards and Decorations) shows he earned the following awards during his active duty tenure:  National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), Combat Infantryman Badge (CIB), Overseas Service Bar, RVN Campaign Medal (RVNCM) with Device 1960, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

5.  The applicant's Military Personnel Records Jacket (MPRJ) contains Department of the Air Force, 25th Casualty Staging Flight, Special Orders Number AA-1, dated 1 January 1968, which directed the applicant's medical evacuation from the United States Army Vietnam (USARV) Patient Casual Company, RVN to Darnell Army Hospital, Fort Hood, Texas, for further treatment with an expected arrival date of 11 January 1968.  A Standard Form (SF) 89 (Report of Medical History) on file shows the applicant sustained a gunshot wound to his stomach while serving in the RVN.

6.  The applicant's record is void of any orders or other documents that indicate he was ever recommended for or awarded the PH.

7.  The applicant's MPRJ is also void of any derogatory information and/or a unit commander disqualification that would have precluded him from receiving the Army Good Conduct Medal (AGCM).

8.  On 16 September 1968, the applicant was honorably released from active duty after completing a total of 2 years and 8 days of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued shows he earned the following awards during his active duty tenure:  NDSM, VSM with 
3 bronze service stars, CIB, RVNCM with Device 1960, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  

9.  The applicant's MPRJ contains a DD Form 215 issued on 4 November 1977, to correct Item 3 (Social Security Number) of the applicant's DD Form 214 and a DD Form 215 issued on 19 April 2005, which was issued to add the Bronze Star Medal with "V" (Valor) Device and RVN Gallantry Cross with Palm Unit Citation to Item 24 of the applicant's DD Form 214.

10.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant's name is included on this casualty listing with an entry confirming he was wounded in action in the RVN on 23 December 1967.

11.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that the PH is awarded to any member who has been wounded or killed in action. A wound is defined as an injury to any part of the body from an outside force or agent sustained under conditions defined by this regulation.  In order to support awarding a member the PH, it is necessary to establish that the wound for which the award is being made required treatment by medical personnel and that treatment must have been made a matter of official record.

12.  Chapter 4, Army Regulation 600-8-22 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 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.

13.  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 the applicant’s tenure of assignment in the RVN, the applicant's unit earned the Valorous Unit Award (VUA) and RVN Civil Actions Honor Medal (RVNCAHM) First Class Unit Citation. 

14.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the active Army.  Paragraph 2-7 provides guidance on issuing and reissuing the DD Form 214.  It states, in pertinent part, that once a DD Form 214 has been issued, it will only be reissued when directed by proper appellate authority, Executive Order, or by the Secretary of the Army; when it is determined that the original DD Form 214 cannot be properly corrected by issuance of a DD Form 215 or if the correction would require issuance of more than two DD Forms 215; or when two DD Forms 215 have been issued and an additional correction is required. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the PH for being wounded in action in the RVN has been carefully considered and found to 
have merit.  

2.  The applicant's record contains a SF 89 and medical evacuation orders that confirm the applicant received a gunshot wound to the stomach while serving in the RVN, and that he was medically evacuated from the RVN to the United States as a result.  Further, the Vietnam Casualty Roster, the official DA list of RVN casualties contains an entry pertaining to the applicant that confirms he was wounded in action in the RVN on 23 December 1967.  Therefore, the regulatory burden of proof necessary to support award of the PH has been satisfied in this case and it would be appropriate to add the PH to his record and DD Form 214 at this time.  

3.  The applicant's record also confirms that he received no less than "excellent" conduct and efficiency ratings at all of his active duty assignments, and his MPRJ is void of any derogatory information or an unit commander disqualification that would have precluded him from receiving the AGCM.  As a result, it would also be appropriate to award him the first award of the AGCM for his qualifying period of honorable active duty service from 9 September 1966 to 16 September 1968, and to add this award to his record and DD Form 214 at this time.

4.  The evidence of record also confirms that based on his service and campaign participation in the RVN, the applicant is eligible for the VUA and RVNCAHM First Class Unit Citation.  Therefore, it would also be appropriate to add these awards to his record and DD Form 214 at this time.  Given the applicant was previously issued two DD Forms 215, a new DD Form 214 should be issued to effect the necessary corrections to his DD Form 214 required by this Board action.  









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 wounds received in action in the RVN on 23 December 1967, and the Army Good Conduct Medal for his qualifying period of honorable active duty service from 9 September 1966 to 16 September 1968; 

   b.  amending Item 24 of his DD Form 214 by deleting the current list of awards and replacing it with the entry "National Defense Service Medal, Bronze Star Medal with "V" Device, Purple Heart, Army Good Conduct Medal, Vietnam Service Medal with 3 bronze service stars, Valorous Unit Award, Republic of Vietnam Campaign Medal with Device 1960, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic Vietnam Civil Actions Honor Medal First Class Unit Citation, Combat Infantryman Badge, Sharpshooter Marksmanship Qualification Badge Rifle Bar"; and 

   c.  providing him a new DD Form 214 that includes these changes.




      _______ _   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)                                         AR20090007234



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ABCMR Record of Proceedings (cont)                                         AR20090007234


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