IN THE CASE OF:	  

		BOARD DATE:	  3 November 2009

		DOCKET NUMBER:  AR20090008943 


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, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Purple Heart (PH).

2.  The applicant states he would like the PH he received for wounds he received in the Republic of Vietnam (RVN) to be added to his DD Form 214.  He further states that the Purple Heart was not listed with his other awards.

3.  The applicant provides his DD Form 214 and Department of Veterans Affairs (VA) file number 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 he entered active duty on 27 July 1967.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was promoted to sergeant (SGT)/E-5 on 2 April 1968 and that this is the highest rank he attained while serving on active duty.  It also shows he served in the RVN from 2 July 1968 to 13 March 1969.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company D, 2nd Battalion, 35th Infantry Regiment, performing duties in MOS 11B as an infantry squad leader.  Item 38 also shows that 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 a gunshot wound to his right foot on 7 March 1969.  Item 41 (Awards and Decorations) does not include the PH in the list of earned awards.

5.  The applicant's Official Military Personnel File (OMPF) is void of any derogatory information or a unit commander disqualification that would have precluded the applicant from receiving the Army Good Conduct Medal (AGCM).  It does, however, contain orders that show the applicant qualified as a marksman with the M-14 rifle and M-60 machinegun while in training, and that he was awarded the Marksman Marksmanship Qualification Badge with Rifle and Machinegun Bars.   

6.  The applicant's OMPF contains a Standard Form (SF) 88 (Report of Medical Examination) and an SF 89 (Report of Medical History), both dated 17 April 1969, which document his separation physical examination.  These documents contain entries indicating the applicant lost his right 4th toe as a result of being wounded in action in the RVN.

7.  On 4 June 1969, the applicant was honorably released from active duty (REFRAD), in the rank of SGT, after completing a total of 1 year, 10 months, and 
8 days of creditable active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued at the time shows he earned the National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), RVN 
Campaign Medal, and Combat Infantryman Badge (CIB) during his active duty tenure.

8.  A member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty Roster, the official DA list of RVN casualties.  This roster contains an entry pertaining to the applicant that confirms he was wounded as a result of hostile action in the RVN on 7 March 1969.

9.  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 the Purple Heart pertaining to the applicant.

10.  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 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 medical personnel, and that a record of this medical treatment was made a matter of official record.

11.  Paragraph 2-13 of the awards regulation contains the regulatory guidance on the Vietnam Service Medal.  It states, in pertinent part, that a bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.  Table B-1 contains a list of Vietnam campaigns, and it shows that during the applicant's tour in Vietnam, he participated in the Vietnam Counteroffensive Phase V (1 July 1968 – 1 November 1968); Vietnam Counteroffensive Phase V (2 November 1968 – 22 February 1969); and the Tet 69 Counteroffensive, 1969 (23 February 1969 – 8 June 1969) campaigns.

12.  Chapter 4 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 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.  

13.  Paragraph 9-13 of the awards regulation contains guidance on the RVN Campaign Medal and states, in pertinent part, that the Device (1960) is worn with this award.

14.  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, 35th Infantry Regiment) received the RVN Gallantry Cross with Palm Unit Citation and the RVN Civil Actions Honor Medal First Class Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his records should be corrected to show award the PH was carefully considered and found to have merit.  The applicant's record confirms he was wounded in action in the RVN on 7 March 1969 and that he was treated for his wounds by medical personnel, as evidenced by entries on his DA Form 20, the Vietnam Casualty Roster, and by entries on his SF 88 and 89.  As a result, it would be appropriate to award him the Purple Heart and to add this award 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 any derogatory information or a unit commander disqualification that would have precluded him from being awarded the first award of the AGCM.  Therefore, it would be appropriate to award him the AGCM for his qualifying period of honorable active duty service from 27 July 1967 through 4 June 1969, and to add this award to his record and DD Form 214 at this time.

3.  The record also shows that based on his 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, 3 bronze service stars to be worn with his already-awarded VSM, and the Device (1960) to be worn with his RVN Campaign Medal.  It further shows that he qualified as a marksman with the M-14 rifle and M-60 machinegun and as a result he is eligible for the Marksman Marksmanship Qualification Badge with Rifle and Machinegun Bars.  Therefore, it would also be appropriate to add these awards to his record and 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:

	a.  deleting from item 24 of his DD Form 214 the Vietnam Service Medal and the Republic of Vietnam Campaign Medal;

	b.  awarding him the Purple Heart for being wounded in action in the RVN on 7 March 1969;

	c.  awarding him the Army Good Conduct Medal (first award) for his qualifying period of honorable active duty service from 27 July 1967 through 4 June 1969; 

	d.  adding to item 24 of his DD Form 214 the Purple Heart, Army Good Conduct Medal (first award), Vietnam Service Medal with three bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and the Marksman Marksmanship Qualification Badge with Rifle and Machinegun Bars; and 

	e.  providing him a correction to his DD Form 214 that includes these changes. 



      __________X_____________
               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)                                         AR20090008943



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ABCMR Record of Proceedings (cont)                                         AR20090008943


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