IN THE CASE OF:	  

		BOARD DATE:	  12 November 2009

		DOCKET NUMBER:  AR20090012659 


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 and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show it.

2.  The applicant states that he was wounded as a result of friendly fire during an ambush while serving with B Company, 4th Battalion, 3rd Infantry, 11th Infantry Brigade, in the Republic of Vietnam.

3.  The applicant provides a copy of a DA Form 1594 (Daily Staff Journal or Duty Officer's Log), dated 6 November 1969, 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 entered active service on 19 March 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was honorably released from active duty on 18 March 1971 in the rank/grade of sergeant/E-5 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.

3.  The applicant's records show that he served in the Republic of Vietnam from on or about 18 August 1969 to on or about 15 August 1970.  He was assigned to B Company, 4th Battalion, 3rd Infantry, 11th Infantry Brigade.

4.  Item 24 (Decoration, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the National Defense Service Medal, the Vietnam Service Medal with two bronze service stars, the Republic of Vietnam Campaign Medal with Device (1960), the Combat Infantryman Badge, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14 and M-16), and two overseas service bars.  Item 24 does not show award of the Purple Heart.

5.  The applicant's records do not contain official orders awarding him the Purple Heart.  Additionally, item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not indicate he was wounded and neither are his medical records available for review with this case nor is his name shown on the Vietnam casualty roster. 

6.  The applicant's service records contain a copy of a declassified DA Form 1594, prepared by the S-3 (Operations Officer) of the 4th Battalion, 3rd Infantry, for the period from 0001 hours on 6 November 1969 through 2400 hours on 6 November 1969.  The journal shows in item 34 at 1530 hours an entry that Company B received friendly rounds from sharks and that there were 6 enlisted members wounded in action.  The applicant's name (as well as his rank and Social Security Number) is shown as one of the wounded members as he suffered a fragment wound in the back.

7.  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.  This 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.

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

9.  Headquarters, U.S. Army Training Center, Infantry and Fort Polk, Fort Polk, LA, Special Orders Number 149, dated 23 June 1969, show the applicant was awarded the Sharpshooter Marksmanship Qualification Badge with Machinegun Bar (M-60) on 13 June 1969.

10.  Headquarters, 197th Infantry Brigade, Fort Benning, GA, Special Orders Number 43, dated 16 February 1971, show the applicant was awarded the Good Conduct Medal (1st Award) for exemplary behavior, efficiency, and fidelity during the period from 19 March 1969 through 18 March 1971. 

11.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that during the time of the applicant's assignment to the 4th Battalion, 3rd Infantry, his unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation from 31 March 1970 to 30 June 1970 based on Department of the Army General Orders 42, dated 1972

12.  Appendix B of Army Regulation 600-8-22 shows that the applicant participated in the Vietnam Summer-Fall 1969 (9 June 1969 to 31 October 1969), the Vietnam Winter-Spring 1970 (1 November 1969 to 30 April 1970), the DA Sanctuary Counteroffensive (1 May 1970 to 30 June 1970), and the Vietnam Counteroffensive, Phase VII (1 July 1970 to 30 June 1971) campaigns during his tour of duty in the Republic of 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant suffered a fragment wound to his back while in action as a result of friendly fire on 6 November 1969.  Therefore, there is sufficient evidence to show the applicant is entitled to award of the Purple Heart and correction of his DD Form 214 to show this award.

2.  General orders awarded the applicant’s unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation and special orders awarded the applicant the Sharpshooter Marksmanship Qualification Badge with Machinegun Bar (M-60) and the Good Conduct Medal (1st Award) which are not shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show these awards. 

3.  The evidence of record shows the applicant was awarded the Vietnam Service Medal.  Additionally, records show the applicant participated in four campaigns while serving in the Republic of Vietnam, two of which are not shown on his records.  Therefore, he is entitled to award of four bronze service stars instead of two to be affixed his already-awarded 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 the applicant the Purple Heart for wounds received in action on 6 November 1969 in the Republic of Vietnam; and

	b.  adding to his DD Form 214 awards of the Purple Heart, the Good Conduct Medal (1st Award), the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Sharpshooter Marksmanship Qualification Badge with Machinegun Bar (M-60), and four bronze service stars instead of two 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)                                         AR20090012659





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ABCMR Record of Proceedings (cont)                                         AR20090012659



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