IN THE CASE OF:	  

		BOARD DATE:	  10 November 2009

		DOCKET NUMBER:  AR20090012637 


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 two awards of the Purple Heart and award of the Army Good Conduct Medal (first award).

2.  The applicant states that he was injured in the Republic of Vietnam on two separate occasions and that his injuries were treated at the unit aid station.  There were no records or recommendations made by the unit medics or his chain of command to award him a Purple Heart for each injury.  He was simply treated and returned to his unit.

3.  The applicant provides a copy of his Honorable Discharge Certificate, dated 2 November 1972; a self-authored statement, dated 15 July 2009; a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of a Claim), dated 31 July 2009; a copy of General Orders Number 7950, issued by Headquarters, 101st Airborne Division, on 22 October 1968, showing award of the Bronze Star Medal; copies of several maps, overlays, and photographs of and/or from Vietnam; and a witness statement, dated 11 July 2009, in support of his request.

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 records show he was inducted into the Army of the United States and he entered active duty on 3 November 1966.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He also completed the Basic Airborne and Pathfinder Courses.  He was honorably released from active duty in the rank/grade of sergeant (SGT)/E-5 on 19 October 1968 after completing 1 year, 11 months, and 17 days of creditable active service with no lost time, and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) for completion of his Reserve obligation.

3.  The applicant’s records show he served in the Republic of Vietnam from on or about 21 October 1967 to on or about 20 October 1968.  He was assigned to B Company, 2nd Battalion (Airborne), 327th Infantry, 101st Airborne Division.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded the National Defense Service Medal, Combat Infantryman Badge, Vietnam Service Medal, Vietnam Campaign Medal, Bronze Star Medal, and the Army Commendation Medal.  Item 24 does not show any awards of the Purple Heart or the Army Good Conduct Medal.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows a blank entry.  Additionally, the applicant’s medical records are not available for review with this case and his name is not shown on the Vietnam Casualty Roster.

6.  There are no official orders in the applicant's records that show he was awarded any Purple Hearts or the Army Good Conduct Medal.

7.  Review the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any Purple Heart or Army Good Conduct Medal orders on file pertaining to the applicant.

8.  The applicant submitted the following documentation in support of his request:

	a.  A self-authored statement, dated 15 July 2009, in support of a VA Claim for the Purple Heart, in which he states that during a three-day stand down from patrolling the area near the Ashau Valley in Vietnam, his company was helping secure the outer perimeter of the Bien Hoa Air Base when it received enemy mortar fire and a mortar round landed close to the area where he was sleeping.  As he scrambled from the tent to the bunker, a round landed near him and he was hit with shrapnel to his right shoulder.  He went to the aid station the next morning where he was treated and returned to his unit.  However, no one at the aid station or in his chain of command submitted a recommendation for an award of the Purple Heart.

	b.  A witness statement, authored by a former comrade in arms, dated 11 July 2009, states that he served in the same platoon with the applicant at the time and that he was present during the night in question, in or around August or September 1968, when the unit was mortared on a three-day stand down.  He adds that he did not see the metal enter the applicant’s shoulder; however, he can confirm that he was hit because his shirt was torn and blood was gushing out.

	c.  Photographs of himself with what appears to be an injury identified on his back and another picture with his right hand bandaged.  He also provided maps of the location of his injury as well as maps of the valley and the Air Base in Vietnam.

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.

10.  Item 38 (Record of Assignments) of the applicant’s DA Form 20 shows he received "excellent" conduct and efficiency ratings throughout his military career.  His record also contains a copy of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 29 March 1967, that shows he accepted nonjudicial punishment for a minor offense of disobeying a lawful order to secure all valuables on 29 March 1967.


11.  Army Regulation 672-5-1 (Awards and Decorations), in effect at the time, provided that the Army Good Conduct Medal was awarded to individuals who completed a qualifying period of active duty enlisted service.  This period was
3 years except in those cases when the period for the first award ended 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 were not disqualifying.  

12.  Review of the applicant’s records indicates his entitlement to additional awards which are not shown on his records.  

13.  Headquarters and Student Brigade, U.S. Army Infantry School, Fort Benning, GA, Special Orders Number 93, show the applicant was awarded the Parachutist Badge on 21 April 1967.

14.  Headquarters, Fort Gordon, GA, Special Orders Number 34, dated 20 February 1967, show the applicant was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-16) and Special Orders Number 29, dated 6 March 1967, show he was awarded the Expert Marksmanship Qualification Badge with Machinegun Bar (M-60).

15.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that during his service with the 2nd Battalion, 327th Infantry in Vietnam, his unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation for service from 19 July 1968 to 14 May 1969 based on Department of the Army General Orders Number 43, dated 1970 and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for service from 18 March 1868 to 2 May 1970 based on Department of the Army General Orders Number 48, dated 1971.

16.  Appendix B of Army Regulation 600-8-22 shows that during his service in the Republic of Vietnam participation credit was awarded for the Vietnam Counteroffensive Phase III (1 June 1967 to 29 January 1968), the TET Counteroffensive (30 January 1968 to 1 April 1968), the Vietnam Counteroffensive Phase IV (2 April 1968 to 30 June 1968), and the Vietnam Counteroffensive Phase V (1 July 1968 to 1 November 1968) campaigns.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded two awards of the Purple Heart and an award of the Army Good Conduct Medal (first award). 

2.  The evidence of record confirms that the applicant served honorably during the period 3 November 1966 through 19 October 1968.  He attained the rank/grade of SGT/E-5, he was awarded the Combat Infantryman Badge, and he received "excellent" conduct and efficiency ratings throughout his military service. Aside from an Article 15 for a minor infraction, his record is void of any lost time or a conviction by a court-martial.  Lacking any major derogatory information on file that would have disqualified him, it would be appropriate to award the applicant the first award of the Army Good Conduct Medal based on completion of qualifying service ending with the termination of a period of Federal military service and correct his records to show this award.

3.  Special orders awarded the applicant the Parachutist Badge, Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Machinegun Bar (M-60) which are not shown on his DD Form 214.  Therefore, he is entitled to correction of his DD Form 214 to show these badges.

4.  General orders awarded the applicant’s unit of assignment the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation which are not shown on his records; therefore, he is entitled to correction of his DD Form 214 to show these unit awards.

5.  The evidence of record shows the applicant was awarded the Vietnam Service Medal.  Additionally, the applicant’s records show he participated in four campaigns while serving in the Republic of Vietnam.  Therefore, he is entitled to four bronze service stars to be affixed to his already-awarded Vietnam Service Medal.

6.  With respect to the two awards of Purple Heart, the applicant’s service in Vietnam and his sincerity are not in question.  However, there is no evidence in the available records that the applicant was wounded and/or injured as a result of hostile action.  Additionally, there is no evidence he was treated by medical personnel for such wounds and/or injuries or that the record of his medical treatment was made a matter of official record.


7.  The statement submitted by the comrade-in-arms is noted; however, the statement by itself is insufficient to justify an award of the Purple Heart.  Regrettably, absent evidence which conclusively shows that the applicant sustained wounds or injuries as a result of hostile action, and more particularly that he was treated by medical personnel for those wounds or injuries and that this treatment was made a matter of official record, there is an insufficient basis for awarding the Purple Heart to the applicant.

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.  deleting from item 24 of his DD Form 214 the Vietnam Service Medal;

	b.  awarding him the Army Good Conduct Medal (first award) for exemplary behavior, efficiency, and fidelity during the period 3 November 1966 through
19 October 1968; and

	c.  adding to item 24 of his DD Form 214 the Army Good Conduct Medal (first award), Vietnam Service Medal with four bronze service stars, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Parachutist Badge, Expert Marksmanship Qualification Badge with Rifle Bar (M-16), Expert Marksmanship Qualification Badge with Machinegun Bar (M-60).

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 the two awards of the Purple Heart. 



      __________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)                                         AR20090012637



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ABCMR Record of Proceedings (cont)                                         AR20090012637



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