IN THE CASE OF:	 

		BOARD DATE:	  02 March 2010

		DOCKET NUMBER:  AR20090014975 


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, correction of the DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) of her deceased husband's, a former service member (FSM), by adding the Purple Heart (PH).

2.  The applicant states, in effect, that the FSM’s DD Form 214 does not show he was a PH recipient and she would like this corrected.

3.  The applicant provides, in support of her application, a Morton/Oliver Veterans Service letter, dated 12 August 2009; State of North Dakota Marriage License, dated 19 May 1972; and FSM's Certificate of Death.

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 FSM’s military record shows he was inducted into the Army of the United States on 7 May 1969.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The FSM’s DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 3 October 1969 through 18 March 1970.

4.  Item 38 of the FSM's DA Form 20 shows that during his RVN tour, he was assigned to Company C, 2nd Battalion, 28th Infantry Regiment, 1st Infantry Division.  It further shows he was in a patient status at the Medical Holding Company (MHC), 106th General Hospital, USARPAC [U.S. Army, Pacific] from 21 February 1970 through 18 March 1970, and that he was medically evacuated to MHC, Fitzsimmons General Hospital, Denver, CO on 19 March 1970.  He was in a patient status at that location from 19 March 1970 through 19 May 1970.

5.  Item 38 of the FSM's DA Form 20 also shows he received "excellent" conduct and efficiency ratings at each of his active duty assignments.

6.  Item 40 (Wounds) of the FSM's DA Form 20 contains an entry showing he sustained wounds to his chest and right thigh on 10 February 1970.

7.  The FSM’s Official Military Personnel File (OMPF) is void of any derogatory information and/or a unit commander disqualification that would have precluded him from receiving the first award of the Army Good Conduct Medal (AGCM).

8.  The FSM’s OMPF contains orders confirming he qualified as an expert with the M-14 rifle, sharpshooter with the M-60 Machinegun, and marksman with the M-16 automatic rifle, and that he was awarded the appropriate marksmanship qualification badges as a result.

9.  The FSM’s OMPF also includes a Standard Form (SF) 88 (Report of Medical Examination) which documents his separation physical examination.   It shows in item 73 (Notes) that he sustained metal fragment wounds to his right chest and leg while serving in the RVN.

10.  On 1 April 1971, the FSM was honorably released from active duty.  The 
DD Form 214 issued to him at that time shows he completed 1 year, 10 months, and 25 days of active duty service.

11.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the DD Form 214 issued to the FSM upon his separation shows he earned the following awards during his active 
duty tenure:  National Defense Service Medal (NDSM), Combat Infantryman Badge (CIB), RVN Campaign Medal (RVNCM) with Device (1960), Air Medal (AM), and Vietnam Service Medal (VSM) with 2 bronze service stars.

12.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that the PH is awarded to any member who has been wounded or killed in action. A wound is defined as an injury to any part of the body from an outside force or agent sustained under conditions defined by this regulation.  In order to support awarding a member the PH, it is necessary to establish that the wound for which the award is being made required treatment by medical personnel and that treatment must have been made a matter of official record.

13.  Army regulation 600-200 (Enlisted Personnel Management), chapter 9, of the version in effect at the time, stated, in pertinent part, that a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization would be entered in Item 40 (Wounds) of the DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in Item 40.

14.  Chapter 4 of the awards regulation prescribes the policy for award of the AGCM.  It states, in pertinent part, that the AGCM is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying 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 military service, in which case, a period of more than 1 year is a qualifying period. Although there is no automatic entitlement to the AGCM, disqualification must be justified.

15.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) establishes the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It confirms that during the applicant’s tenure of assignment in the RVN, the applicant's unit earned the RVN Gallantry Cross (RVNGC) with Palm Unit Citation and the RVN Civil Actions Honor Medal (RVNCAHM) First Class Unit Citation.





DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the PH should be added to the FSM’s record and DD Form 214 has been carefully considered and found to have merit.  The evidence of record confirms that the FSM was wounded in action when he sustained metal fragment wounds to his chest and right thigh while serving in the RVN on 10 February 1970, as evidenced in the entry in item 40 on his DA Form 20 and the SF Form 88 documenting his separation physical examination.  As a result, it would be appropriate to award the FSM the PH and correct his records to show this award.

2.  The FSM's record also confirms that he received "excellent" conduct and efficiency ratings at all of his active duty assignments, and his MPRJ is void of any derogatory information or a unit commander disqualification that would have precluded him from receiving the AGCM.  As a result, it would be appropriate to award him the first award of the AGCM for his qualifying period of honorable active duty service from 7 May 1969 to 1 April 1971, and to correct his records to show this award.

3.  The evidence of record also includes official orders confirming the FSM qualified as an "expert" with the M-14 Rifle, "sharpshooter" with the M-60 Machinegun, and "marksman" with the M-16 Automatic Rifle.  As a result, the FSM is entitled to correction of his records to show the Expert Marksmanship Qualification Badge with Rifle Bar, Sharpshooter Marksmanship Qualification Badge with Machinegun Bar, and Marksman Marksmanship Qualification Badge with Automatic Rifle Bar.

4.  The evidence of record also confirms that based on his service and campaign participation in the RVN, the FSM is entitled to the RVNGC with Palm Unit Citation and the RVNCAHM First Class Unit Citation.  Therefore, it would also be appropriate to add these unit awards to his records at this time.

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 FSM the Purple Heart for wounds received in action in the RVN on 10 February 1970;

	b.  awarding the FSM the Army Good Conduct Medal (first award) for his qualifying period of honorable active duty service from 7 May 1969 to 1 April 1971;

	c.  adding to item 24 of the FSM's DD Form 214 the Purple Heart, Army Good Conduct Medal (first award), Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Expert Marksmanship Qualification Badge with Rifle Bar, Sharpshooter Marksmanship Qualification Badge with Machinegun Bar, and the Marksman Marksmanship Qualification Badge with Automatic Rifle Bar; and

	d.  providing the applicant a correction to the FSM's DD Form 214 that includes these changes.



      __________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)                                         AR20090014975



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090014975



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1