IN THE CASE OF:	  

		BOARD DATE:	  15 December 2009

		DOCKET NUMBER:  AR20090012118 


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, in effect, that he was wounded by friendly fire and he believes he meets the criteria for award of the Purple Heart due to wounds from friendly fire.  He contends that he was with his unit outside the perimeter of a firebase dug in at night, that the firebase had a fire mission evidently in their direction, and that they took a couple of short rounds.  He contends the projectiles were released with full intent of inflicting damage or destroying enemy troops or equipment.

3.  The applicant provides service medical records; documentation pertaining to Purple Heart criteria; and a copy of his DD Form 214 (Report of Transfer or Discharge) 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 was inducted into the Army of the United States on 5 March 1969.  He arrived in Vietnam on 11 December 1969.  He served as a light weapons infantryman assigned to Company C, 1st Battalion, 12th Cavalry of the 1st Cavalry Division in Vietnam from 20 December 1969 until he was injured on 30 June 1970.  He was subsequently transferred to the United States on 20 July 1970 for further medical treatment.  On 5 March 1971, he was released from active duty and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining service obligation.

3.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the National Defense Service Medal, Vietnam Service Medal with one bronze service star, Republic of Vietnam Campaign Medal with Device (1960), and the Combat Infantryman Badge as authorized awards.

4.  There are no orders for the Purple Heart in the available records.

5.  The applicant's DA Form 20 (Enlisted Qualification Record) does not show entitlement to the Purple Heart and item 40 (Wounds) on his DA Form 20 is blank.  The applicant's name does not appear on the Vietnam Casualty Roster.

6.  In support of his claim, the applicant provided a Standard Form (SF) 502 (Clinical Record – Narrative Summary), dated 13 July 1970, which states, in pertinent part, that he was injured in a mortar attack and he suffered multiple fragment wounds to his right arm, left thigh, and both hands on 30 June 1970.  The record also states he was accidentally injured and the circumstances were unknown.

7.  Headquarters, 1st Cavalry Division (Airmobile) General Orders Number 12718, dated 17 July 1970, show the applicant received the Air Medal.

8.  The applicant’s DD Form 214 shows that he was awarded the Vietnam Service Medal with one bronze service star.  Paragraph 2-13 of Army Regulation 600-8-22 (Military Awards) 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 following three 
campaigns:  Vietnam Summer-Fall 1970 (1 November 1969 – 30 April 1970); Sanctuary Counteroffensive (1 May 1970 – 30 June 1970); and Vietnam Counteroffensive, Phase VII (1 July 1970 – 30 June 1971).

9.  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 the applicant's unit at the time of his assignment was awarded the Valorous Unit Award for actions during the period 1 May 1970 to 29 June 1970 based on Department of the Army General Orders (DAGO) Number 43, dated 1972.

10.  Department of the Army Pamphlet 672-3 shows the applicant's unit 
at the time of his assignment was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period May 1969 to February 1970 based on DAGO Number 11, 1973; this unit received a second award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 19-27 May 1970 based on DAGO Number 55, dated 1971; this unit received a third award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period
21 February 1970 to 28 February 1971 based on DAGO Number 42, dated 1972; and this unit received a fourth award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 17 September 1965 to June 1972 based on DAGO Number 54, dated 1974.

11.  Paragraph 6 (Miscellaneous Information) of DA Pamphlet 672-3 states that not more than one award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation may be worn by any individual.  Although wear of multiple awards of this unit citation badge is not authorized, official military personnel and historical records will indicate all awards received.  In those instances, however, where a single unit received duplicate Vietnamese unit awards during the same period, only one will be recorded in official military personnel and historical records.  For example, Battery D, 5th Battalion, 2nd Artillery, was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation during the following periods:  
1 September 1968 to 15 March 1969 and 1 September 1968 to 30 September 1970.  Members of this unit, who were assigned during either of these two periods, are eligible for only one award.

12.  Department of the Army Pamphlet 672-3 also shows the applicant's unit at the time of his assignment was awarded the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation based on DAGO Number 42, dated 1972.

13.  Army Regulation 600-8-22 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.  The regulation also 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was wounded by friendly fire when his unit, positioned outside the perimeter of a firebase, took a couple of short rounds from a fire mission appears to have merit.  Medical evidence of record shows the applicant was accidentally injured in a mortar attack in Vietnam on 30 June 1970.  It is reasonable to presume that the mortar attack (i.e., friendly fire) was the result of a fire mission (i.e., heat of battle) as required by the governing regulation.  Therefore, the medical evidence of record is accepted as sufficient evidence on which to base award of the Purple Heart in this case.

2.  Orders show the applicant received the Air Medal.  Therefore, his DD Form 214 should be corrected to show this award.

3.  The applicant's DD Form 214 shows the Vietnam Service Medal with one bronze service star as an authorized award.  However, the applicant participated in three campaigns during his assignment in Vietnam which entitles him to award of the Vietnam Service Medal with three bronze service stars.  Therefore, his DD Form 214 should be corrected to show two additional awards of the bronze service star.

4.  The applicant's unit was cited for award of the Valorous Unit Award and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation while he was assigned to it.  Therefore, his DD Form 214 should be corrected to show these unit awards.  

5.  The applicant's unit was cited for four awards of the Republic of Vietnam Gallantry Cross with Palm Unit Citation while he was assigned to it.  However, by applicable regulation, where a single unit received duplicate Vietnamese unit awards during the same period, only one will be recorded in official military personnel and historical records.  DAGO 54, dated 1974, authorized the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 17 September 1965 through June 1972, which encompasses the entire period covered by the three previous awards.  Therefore, his records should be corrected to show only one award of this unit citation.
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  with one bronze service star;

	b.  awarding him the Purple Heart for wounds received in action on 30 June 1970 in Vietnam; and

	c.  adding to item 24 of his DD Form 214 the Purple Heart, Air Medal, Vietnam Service Medal with three bronze service stars, Valorous Unit Award, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, 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)                                         AR20090010900



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ABCMR Record of Proceedings (cont)                                         AR20090012118



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