IN THE CASE OF:	  

		BOARD DATE:	  24 November 2009

		DOCKET NUMBER:  AR20090011035 


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 award of the Purple Heart.

2.  The applicant states that he was wounded when a 122mm rocket hit his bunker in Hy Tan, Vietnam.  He maintains that he was treated and hospitalized at Chu Lai for 10 to 15 days.

3.  The applicant provides a copy of his 10 March 1970 DD Form 214 and his Veterans Affairs (VA) disability rating.

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.  Records show the applicant was inducted into the Army of the United States on 11 March 1968.  The applicant served in the Republic of Vietnam from 
16 August 1968 to 15 August 1969 and was assigned to Company B, 3rd Battalion, 1st Infantry, 11th Infantry Brigade.  He was honorably released from active duty on 10 March 1970.

3.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows the following:  National Defense Service Medal, Combat Infantryman Badge, Army Commendation Medal, Vietnam Service Medal, Vietnam Campaign Medal with 60 Device, Bronze Star Medal with V Device, Marksman Marksmanship Qualification Badge (M -16) (M-14), and Sharpshooter Marksmanship Qualification Badge (M-60).  The applicant's military service records do not contain any general orders awarding him the Purple Heart.

4.  The applicant's VA rating shows that he was awarded a 10 percent disability rating for a residual shell fragment wound in the back.

5.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) shows the entry "Fragment Wound - Back."  The entry is dated 
15 September 1968. 

6.  Additionally, the applicant's name is listed on the Vietnam Casualty Roster.  The roster verified that the applicant was wounded as a result of hostile action on 15 September 1968.

7.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.  Paragraph 2-8b(2) states that for the purpose of considering an award of the Purple Heart, a “wound” is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.  

8.  Review of the applicant's DD Form 214 indicates that he is entitled to additional awards that are not shown on this form.  The applicant's DD Form 214 does not list award of the Army Good Conduct Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citation or the Valorous Unit Award.

9.  Item 38 (Conduct and Efficiency) of  the applicant's DA Form 20 shows that he was rated as "excellent" on all the entries listed on this form.  Additionally, there are no records of disciplinary infractions contained in the applicant's file.  
10.  Army Regulation 672-5-1, in effect at the time, provides that the Good Conduct Medal is awarded to individuals who have completed a qualified 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.  The enlisted person must have had all “excellent” conduct and efficiency ratings and no convictions by a court-martial.  Ratings of "Unknown" for portions of the period under consideration are not disqualifying.  

11.  The Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists unit awards received by units serving in Vietnam.  This document shows the 3d Battalion, 1st Infantry, during the period that the applicant was assigned, was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Department of the Army General Orders Number 2, dated 1971; and the Valorous Unit Award by Department of the Army General Orders Number 43, dated 1972.

12.  Appendix B of Army Regulation 600-8-22 shows that the applicant participated in four campaigns during his tour of duty in Vietnam.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.  The applicant's DD Form 214 shows award of the Vietnam Service Medal.  

DISCUSSION AND CONCLUSIONS:

1.  The Vietnam Casualty Roster shows the applicant was wounded by a hostile force on 15 September 1968.  Therefore, he is entitled to award of the Purple Heart.

2.  Evidence of record shows that the applicant served 2 years of active federal serve with no disciplinary infractions listed.  His conduct and efficiency ratings were all listed as “excellent.”  Therefore, he is entitled to award of the AGCM.

3.  Evidence of record further shows that the applicant is entitled to wear the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Valorous Unit Award.  Therefore, the applicant is entitled to correction of his records to show these awards.

4.  The evidence also shows that the applicant participated in four campaigns during his service in Vietnam.  Therefore, the applicant is entitled to correction of his records to show award of four bronze service stars to be worn on his Vietnam Service Medal.

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 sustained on 15 September 1968;

	b.  awarding him the Army Good Conduct Medal for the period 11 March 1968 to 10 March 1970;

   c.  adding to the individual’s 10 March 1970 DD Form 214 the Purple Heart, Army Good Conduct Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Valorous Unit Award, and four bronze service stars to be affixed to his already-awarded Vietnam Service Medal.
   
   
   
   
      _______ _   _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)                                         AR20090011035





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ABCMR Record of Proceedings (cont)                                         AR20090011035



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