BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090010521 


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 the Purple Heart be added to his DD Form 214 (Armed Forces of United States Report of Transfer or Discharge).

2.  The applicant states he was awarded the Purple Heart on 23 October 1970 but it is not on his DD Form 214.

3.  The applicant provides a DD Form 214 and a Purple Heart Certificate in support of this 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 enlisted in the Regular Army on 31 August 1968 and upon completion of initial entry training was awarded military occupational specialty 11C (Indirect Fire Infantryman).  He served in Vietnam from 11 February 1969 to 5 December 1969 and was assigned to the 1st Battalion, 6th Infantry, 198th Infantry Brigade.  He was placed on the Permanent Disability Retired List on 
24 June 1970.

3.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows the Combat Infantryman Badge, the Republic of Vietnam Campaign Medal with Device (1960), the Vietnam Service Medal, the National Defense Service Medal, the Expert Marksmanship Qualification Badge with Rifle Bar 
(M-16 Rifle), and the Marksman Marksmanship Qualification Badge with Rifle Bar 
(M-14 Rifle) as authorized awards.

4.  The applicant's records contain a copy of a Western Union telegram sent by The Adjutant General, Department of the Army, which informed the applicant's father that the applicant was injured on 7 November 1969, while in base camp, when he threw a grenade which detonated prematurely.  The telegram stated the applicant received traumatic amputation of his right hand at the wrist and traumatic amputation of his thumb and third finger of his left hand.

5.  Item 30 (Details of Accident – Remarks) of a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 16 November 1969, states, in part, the applicant was performing sentinel duty on a 2-man fighting position located at Hill 76, Republic of Vietnam.  The applicant moved approximately 2 feet behind the fighting position, secured an M26 fragmentation grenade, pulled the pin and prepared to throw the grenade down the side of Hill 76.  The grenade discharged prior to the applicant releasing it resulting in the loss of his right hand.  There were no unsafe personnel acts.  The M26 fragmentation grenade was faulty in that the fuse was not a delay fuse.

6.  There are no orders in the applicant's records which show he was awarded the Purple Heart.

7.  The applicant's name does not appear on the Vietnam Casualty List.

8.  A search of the Awards and Decorations Computer-assisted Retrieval System (ADCARS) was made for orders awarding the applicant the Purple Heart.  No orders for this award were found in the ADCARS.


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."

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.  Review of the applicant's records indicates entitlement to awards that are not shown on his DD Form 214.

12.  Appendix B of Army Regulation 600-8-22 shows the campaigns for Vietnam. During the applicant's tour in Vietnam he participated in three campaigns:  Tet 69 Counteroffensive, 1969, Vietnam Summer – Fall 1969, and Vietnam Winter – Spring 1970.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

13.  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 pamphlet shows that at the time of the applicant's assignment to the 1st Battalion, 6th Infantry, 198th Infantry Brigade, it was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 
24 August 1969 to 31 December 1969 by Department of the Army General Orders Number 42, dated 1972.

DISCUSSION AND CONCLUSIONS:

1.  There are no orders in applicant's records which show he was awarded the Purple Heart and his name is not listed on the Vietnam Casualty List.  However, based on the evidence in this case, it is reasonable to conclude that the applicant was wounded as a result of friendly fire, in the heat of battle, which was intended to inflict damage upon the enemy.  Therefore, the regulatory requirement necessary to support award of the Purple Heart based on a friendly fire incident has been met in this case.  Accordingly, it would be in the interest of justice to award him the Purple Heart for wounds received in action in Vietnam on 
7 November 1969.

2.  Records show the applicant was awarded the Vietnam Service Medal.  Additionally, records show the applicant participated in three campaigns while serving in Vietnam.  Therefore, he is entitled to award of three bronze service stars to be affixed to his Vietnam Service Medal.

3.  The applicant was assigned to the 1st Battalion, 6th Infantry, 198th Infantry Brigade at the time the unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, he is entitled to have his records corrected to show this unit award.

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 amending his DD Form 214 by adding to it the Purple Heart, three bronze service stars to be affixed to his Vietnam Service Medal, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.
  




      _______ _   __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)                                         AR20090010521



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ABCMR Record of Proceedings (cont)                                         AR20090010521



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