IN THE CASE OF:	  

		BOARD DATE:	      14 OCTOBER 2009

		DOCKET NUMBER:  AR20090009026 


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, he was injured during combat action in the Republic of Vietnam (RVN) as evidenced by award orders on file in his record. He states that he now knows that any injury sustained during a combat action qualifies for the PH. 

3.  The applicant provides the following documents in support of his application:  Self-Authored Statement; Headquarters, II Field Force Vietnam, General Orders Number 2170, dated 28 May 1970; and DD Form 214 (Armed Forces of the United States Report of Discharge).

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 3 December 1968.  It also shows he was trained in and awarded military occupational specialty (MOS) 91B (Medical Specialist).  

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 27 November 1969 through 9 November 1970.  Item 38 (Record of Assignments) shows that during his RVN tour he was assigned to Headquarters and Headquarters Troop, 1st Squadron, 11th Armored Cavalry Regiment from 26 November 1969 through 23 September 1970, and to the 
37th Medical Company, 11th Armored Cavalry Regiment from 24 September through 31 October 1970, performing duties in MOS 91B as a troop aid man.  

4.  Item 38 of the applicant's DA Form 20 also shows that he received "excellent" conduct and efficiency ratings at all of his active duty assignments and his Official Military Personnel File (OMPF) is void of any derogatory information or a unit commander disqualification that would have precluded him from receiving the Army Good Conduct Medal (AGCM). 

5.  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 Medical Badge (CMB), RVN Campaign Medal (RVNCM), Soldier's Medal, Bronze Star Medal (BSM), Army Commendation Medal (ARCOM), Expert Marksmanship Qualification Badge with Rifle (M-16) Bar, and Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar.  

6.  The applicant's OMPF contains Headquarters, II Field Force Vietnam, General Orders Number 2170, dated 28 May 1970, which awarded the applicant the Bronze Star Medal with "V" (Valor) Device for heroism in connection with ground operations against a hostile force in the RVN on 26 March 1970.  The citation contained on the orders indicates that as the applicant's troop entered the contact area acting as a reactionary force to an infantry troop that had been trapped northwest of Fire Support Base Illingworth, it began to receive intense recoilless rifle, rocket-propelled grenade, small arms and automatic weapons fire from two companies of North Vietnamese Soldiers.  As the battle continued, the applicant disregarded the enemy fusillade to administer aid to the wounded infantry as well as running from vehicle to vehicle caring for the wounded.  The citation further states that despite a painful injury, the applicant continued to treat the wounded and assured their evacuation.  Only after contact was broken did he allow himself to be treated for his wounds.  


7.  On 9 November 1970, the applicant was honorably released from active duty (REFRAD) after completing 1 year, 11 months, and 7 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 at the time shows he earned the NDSM, VSM, RVNCM, BSM, Soldier's Medal, ARCOM, and CMB.  

8.  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 in order to support award of the PH there must be evidence showing that the wound for which the award is being made was received as a result of enemy action, that it was treated by medical personnel, and a record of this treatment must have been made a matter of official record.  

9.  Paragraph 2-13 contains guidance on the VSM.  It states, in pertinent part, that a bronze service star is authorized for each campaign a member is credited with participating in while serving in the RVN.  Table B-1 contains a list of RVN campaigns and shows that during the applicant's tenure of assignment in the RVN participation credit was granted for the Vietnam Winter-Spring, Sanctuary Counteroffensive, and Vietnam Counteroffensive Phase VII campaigns.  

10.  Chapter 4 of Army Regulation 600-8-22 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.

11.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that during the applicant’s tenure of assignment in the RVN, his unit (37th Medical Company) received the RVN Gallantry Cross with Palm Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been awarded the PH for an injury he received during combat action in the RVN as evidenced by the citation contained on his BSM with "V" Device orders was carefully considered and found to have merit.  

2.  By regulation, in order 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 military medical personnel, and that a record of this treatment was made a matter of official record.  Although the applicant's record is void of entries, medical treatment records, or orders that show he was ever wounded in action, treated for a combat-related wound, or awarded the PH while serving on active duty, the citation contained in the applicant’s BSM with "V" Device orders confirm he was injured during combat action and that he was treated for his wounds subsequent to the action.  This citation serves to satisfy the regulatory burden of proof necessary to support award of the PH.  Therefore, it would be appropriate and serve the interest of equity and justice to award the applicant the PH for being wounded in action in the RVN on 26 March 1970 and to add this award to his record and DD Form 214 at this time.

3.  The applicant's record also confirms he received "excellent" conduct and efficiency ratings at all of his active duty assignments and his record is void of derogatory information or a unit commander disqualification that would have precluded him from receiving the AGCM.  Therefore, it would be appropriate to award him the first award of the AGCM for his qualifying period of honorable active duty service from 3 December 1968 through 9 November 1970 and to add this award to his record and DD Form 214. 

4.  The evidence of record further confirms that based on his RVN service and campaign participation, the applicant is also eligible for the RVN Gallantry Cross with Palm Unit Citation and 3 bronze service stars to be worn with his VSM.  Therefore, these awards should also be added to his record and DD Form 214 at this time.  

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 Republic of Vietnam on 26 March 1970; 

	b.  awarding him the Army Good Conduct Medal for his qualifying period of honorable active duty service from 3 December 1968 through 9 November 1970; and 

	c.  amending item 24 of his DD Form 214 by adding the Purple Heart, Army Good Conduct Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and 3 bronze service stars to be worn with his Vietnam Service Medal.




      _______ _   __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)                                         AR20090009026



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090009026


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1