BOARD DATE:	  10 November 2009

		DOCKET NUMBER:  AR20090009762 


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 the Purple Heart and the Air Medal.

2.  The applicant states, in effect, that he was wounded in Vietnam and was not awarded the Purple Heart.  He goes on to state that he also participated in combat missions that involved insertions and extractions on a regular basis, sometimes as often as one per day and he was never awarded the Air Medal.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a copy of a document from the National Archives and Records Administration indicating his casualty record, a copy of a DA Form 1594 (Daily Staff Journal or Duty Officer's Log), and a copy of a daily operations forecast.

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 enlisted in the Regular Army in Los Angeles, California, on 9 July 1969 for a period of 3 years for the airborne enlistment option.  He completed his basic training at Fort Ord, California, his advanced individual training as a medical specialist at Fort Sam Houston, Texas, and his airborne training at Fort Benning, Georgia, before being assigned to the 82d Airborne Division at Fort Bragg, North Carolina, on 4 February 1970.  He was advanced to the pay grade of E-4 on 9 June 1970.

3.  On 2 September 1970, he was transferred to Vietnam for assignment to Headquarters and Headquarters Company, 2d Battalion, 503d Infantry Regiment, 173d Airborne Brigade.

4.  On 17 May 1971, while on a mission with Company E, the applicant was shot twice by a fellow Soldier while on guard duty at an ambush site.  The applicant was mistaken for the enemy and sustained gunshot wounds to the left arm and left rib cage.  He was medically evacuated to the 67th Evacuation Hospital at Qui Nhon and then to the United States Army Hospital at Camp Zama, Japan.  On 3 June 1971, he was evacuated to Letterman General Hospital at the Presidio of San Francisco, California.

5.  On 19 January 1972, he was honorably discharged due to physical disability with severance pay (20 percent disability).  He had served 2 years, 6 months and 11 days of total active service.  His DD Form 214 issued at the time of his discharge reflects that he was awarded the National Defense Service Medal, the Vietnam Service Medal (VSM), the Republic of Vietnam Campaign Medal with Device (1960), one overseas service bar, the Parachutist Badge, and the Combat Medical Badge.

6.  A review of the applicant's official records show that he had "excellent" conduct and efficiency ratings throughout his service and his record is void of any derogatory information that would serve to disqualify him for award of the Army Good Conduct Medal (AGCM).

7.  A search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System, a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era, also failed to reveal an order awarding the applicant the Air Medal.  Additionally, there is no evidence to show that the applicant was ever recommended for or awarded the Air Medal.

8.  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 at the time of the applicant's assignment to the 2d Battalion, 503d Infantry Regiment, the unit was cited for award of the Republic of Vietnam (RVN) Gallantry Cross with Palm Unit Citation and the RVN Civil Actions Honor Medal First Class Unit Citation.  Additionally, he participated in one campaign while in Vietnam and is entitled to wear one bronze service star on his already-awarded VSM.

9.  Included as part of the Department of Defense Appropriations Act for fiscal year 1994 was an amendment to the rules governing award of the Purple Heart.  While the original rules established that the Purple Heart would be awarded to individuals killed or wounded as a result of hostile action, the amendment enabled the Secretaries of each department to award the Purple Heart to members of the Armed Forces who were killed or wounded in action by weapon fire while directly engaged in armed conflict other than as the result of an act of an enemy of the United States.  This ruling, in effect, granted the service Secretaries the authority to award the Purple Heart to individuals directly engaged in armed conflict who were killed or wounded as a result of "friendly fire" on or after 7 December 1941.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Purple Heart to individuals wounded or killed as a result of "friendly fire" in the heat of battle as long as the friendly projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.

11.  Army Regulation 600-8-22 provides, in pertinent part, that the Air Medal is awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  This award is primarily intended for personnel on flying status, but may also be awarded to those personnel whose combat duties require them to fly (for example, personnel in the attack elements of units involved in air-land assaults against an armed enemy).  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

12.  Army Regulation 600-8-22, in pertinent part, authorizes award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal to include the VSM.

13.  Army Regulation 672-5-1 (Military Awards), in effect at the time, established the criteria for award of the AGCM.  It states, in pertinent part, that the AGCM was established by Executive Order 8809, dated 28 June 1941, and was amended by Executive Order 9323, dated 1943, and by Executive Order 10444, dated 10 April 1953, and is awarded for exemplary behavior, efficiency, and fidelity in active Federal military service.  The regulation also stated, in pertinent part, that for the first award only, upon termination of service on or after 27 June 1950, a period of service of less than 3 years but more than 1 year qualified for award of the AGCM.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was not awarded the Purple Heart at the time because he was wounded as a result of "friendly fire" and the laws and regulations in effect at the time did not provide for award of the Purple Heart under those circumstances.  However, due to legislative changes that have subsequently occurred that allow retroactive award of the Purple Heart for wounds that are received as a result of "friendly fire," the applicant is entitled to the award of the Purple Heart for wounds received in Vietnam on 17 May 1971 while serving in the rank of specialist four.  Accordingly, it would be in the interest of justice to do so at this time.

2.  After carefully examining the applicant's record of service, it was determined that the applicant was eligible for the AGCM for his service from 9 July 1969 through 19 January 1972.  This conclusion is based on the fact that his record is void of any derogatory information which would preclude him from being awarded the AGCM and the lack of any specific action by his unit commander to disqualify him from receiving the award.  The applicant not receiving the AGCM was likely the result of an administrative error as opposed to it being the result of a conscious disqualification by any of the unit commanders for which he served.  Therefore, in the interest of justice, this error should be corrected and the applicant should receive the AGCM at this time.

3.  Additionally, the evidence of record also establishes that the applicant is entitled to awards of the RVN Gallantry Cross with Palm Unit Citation, the RVN Civil Actions Honor Medal First Class Unit Citation, and one bronze service star for wear on his already-awarded VSM.

5.  However, the applicant has not provided and the official records do not contain evidence to show that he was recommended for or awarded the Air Medal.  Therefore, in the absence of sufficient evidence to establish that he is entitled to that award, there appears to be no basis to grant his request at this time.



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.  awarding him the Purple Heart for wounds received in Vietnam on 17 May 1971 while serving in the rank of specialist four;

	b.  awarding him the AGCM for the period of 9 July 1969 to 19 January 1972; and 

	c.  adding the Purple Heart, the AGCM, the RVN Gallantry Cross with Palm Unit Citation, the RVN Civil Actions Honor Medal First Class Unit Citation, and one bronze service star for wear on his already-awarded VSM 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 award of the Air Medal.

3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   ____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)                                         AR20090009762



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ABCMR Record of Proceedings (cont)                                         AR20090009762



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