IN THE CASE OF:	

		BOARD DATE:	  13 April 2010


		DOCKET NUMBER:  AR20090017274 


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 with second oak leaf cluster and its addition to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states that he was wounded three times and only awarded one Purple Heart.  He was wounded on 16 July 1968 and was awarded the Purple Heart.  He was also wounded on or about 28-30 December 1968 and again on or about 30 January 1969.  He was then sent back to Walter Reed Army Medical Center.  He just found out that he could apply for these awards.

3.  In support of his application, he provides a copy of his DD Form 214.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers request and statement to the applicant and provides no additional documentation in support of the applicant's 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 military records show he was inducted into the Army of the United States in pay grade E-1 on 8 November 1967.  He completed training and was awarded military occupational specialty 11B (light weapons infantryman).  He served in the Republic of Vietnam from 21 April 1968 to 6 March 1969 with Company A, 4th Battalion, 39th Infantry, 9th Infantry Division, for four campaigns.

3.  Headquarters, 9th Infantry Division, General Orders Number 174, dated 5 January 1969, show the applicant was awarded the Purple Heart for wounds received in connection with military operations against a hostile force in the Republic of Vietnam on 16 July 1968.

4.  The applicant's record also contains a Western Union telegram, dated 31 January 1969, wherein his parents were informed of his being slightly wounded as a result of enemy action in Vietnam on 30 January 1969.  His records show he was in a patient status on 9 February 1969 at the 249th General Hospital, Japan, and on 6 March 1969 at the Walter Reed Army Medical Center.

5.  The applicant was honorably retired in pay grade E-5 on 12 March 1970 for disability.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not list the Purple Heart or the Purple Heart with first or second oak leaf cluster.

6.  The applicant's DA Form 20 (Enlisted Qualification Record), item 41 (Awards and Decorations), does not list the Purple Heart or Purple Heart with first or second oak leaf cluster.  It shows his conduct and efficiency were rated as "excellent" throughout his service.  His records contain no evidence of disciplinary actions.

7.  The Vietnam casualty roster shows the applicant was wounded on 16 July 1968 and the casualty status code was "24."  This code indicates the status "hostile wounded in action, not serious, not hospitalized."  The roster also shows he was wounded on 30 January 1969 and the casualty status code was "23."  This code indicates the status "hostile wounded in action, not serious, hospitalized."  The roster does not show he was wounded or injured on any other dates during his period of service in Vietnam.

8.  A search of the Awards and Decorations Computer-Assisted Retrieval System was made for orders awarding the applicant the Purple Heart or the Purple Heart with first or second oak leaf cluster.  No orders for these awards were found.

9.  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 military personnel, and the medical treatment must have been made a matter of official record.  A Purple Heart is authorized for the first wound suffered under the above conditions, but for each subsequent award an oak leaf cluster will be awarded.  Not more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent.

10.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provided that the Army Good Conduct Medal was awarded to individuals who completed a qualified 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.

11.  The applicant's DD Form 214 shows that he was awarded the Vietnam Service Medal, but it does not show that he was awarded any bronze service stars to signify campaign participation credit.  Paragraph 2-13 of Army Regulation 600-8-22 contains the regulatory guidance on the Vietnam Service Medal.  It states that a bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.  Appendix B contains a list of Vietnam campaigns.

12.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that at the time of the applicant's assignment with the 4th Battalion, 39th Infantry, it was cited for award of Valorous Unit Award by Headquarters, Department of the Army, General Orders Number 43, dated 1970; the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Headquarters, Department of the Army, General Orders Number 31, dated 1969; and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation by Headquarters, Department of the Army, General Orders Number 59, dated 1969.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been awarded a second and third Purple Heart.  There are no general orders that show the applicant was awarded the Purple Heart with first or second oak leaf cluster.  The evidence of record shows he wounded as a result of hostile action on 16 July 1968 in Vietnam and was awarded the Purple Heart.  This award is not shown on his DD Form 214.  He was wounded again as a result of hostile action on 30 January 1969 in Vietnam.  Despite the lack of general orders awarding the applicant the Purple Heart with first oak leaf cluster, the evidence shows he is qualified for award of the Purple Heart with first oak leaf cluster for wounds received as a result of hostile action on 30 January 1969 as verified by the Vietnam casualty roster.  Therefore, he is entitled to correction to his DD Form 214 to show his already-awarded Purple Heart and award of the Purple Heart with first oak leaf cluster.

2.  The applicant's service records provide no evidence he ever sustained or was treated for wounds received as a result of hostile action on occasions other than 16 July 1968 and 30 January 1969 or that he was eligible for award of a third Purple Heart.  The criteria for award of the Purple Heart specified in the applicable regulation must be met in order that an award of the Purple Heart can be made.  Based on the foregoing, he is not entitled to award of a third Purple Heart or, in effect, the Purple Heart with second oak leaf cluster.

3.  The evidence of record shows that the applicant completed a qualifying period of service for award of the Army Good Conduct Medal.  There is no evidence his commander ever disqualified him from receiving the award and there is no evidence of any misconduct which would justify denying him the award.  He received all "excellent" conduct and efficiency ratings throughout his service and he was honorably retired for disability in pay grade E-5.  In view of the foregoing, it appears the applicant met the basic qualifications for the first award of the Army Good Conduct Medal for the period 8 November 1967 to 12 March 1970.  Therefore, he is entitled to award of the Army Good Conduct Medal (1st Award) and correction of his records to show this award.

4.  The evidence of record also shows the applicant participated in four campaigns during his service in Vietnam.  He is therefore further entitled to award of four bronze service stars to be affixed to his already-awarded Vietnam Service Medal and to add them to his DD Form 214 at this time.

5.  General orders authorized the applicant's unit the Valorous Unit Award, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of 

Vietnam Civil Actions Honor Medal First Class Unit Citation during his tenure of assignment in Vietnam.  These unit awards are not shown on his DD Form 214.  Therefore, he is entitled to have his DD Form 214 corrected to show these unit awards.

6.  In view of the foregoing, the applicant's records should be corrected as recommended below.

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.  awarding the applicant the Purple Heart with first oak leaf cluster for wounds received as a result of hostile action in the Republic of Vietnam on 30 January 1969 and the Army Good Conduct Medal (1st Award) for the period 8 November 1967 to 12 March 1970;

	b.  adding the Purple Heart with first oak leaf cluster, the Army Good Conduct Medal (1st Award), the Valorous Unit Award, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and four bronze service stars to be affixed to his already-awarded Vietnam Service Medal to his DD Form 214; and

	c.  providing the applicant a corrected DD Form 214 that includes these awards.

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 award of the Purple Heart with second oak leaf cluster and its addition to his DD Form 214.



      _____________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)                                         AR20090017274



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ABCMR Record of Proceedings (cont)                                         AR20090017274



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