IN THE CASE OF:	

		BOARD DATE:	13 May 2010  

		DOCKET NUMBER:  AR20090018223 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Purple Heart and correction of his last name to "W---T."

2.  The applicant states that his DD Form 214 does not indicate the Purple Heart award for wounds received in Vietnam on 30 March 1968.  He had never realized this award was not listed until his wife asked him about getting the Purple Heart license tags.  His also states that he legally changed his last name to "W---t."

3.  The applicant provides no additional documentation 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 military record shows that he was inducted into the Army of the United States on 1 February 1967.  His DD Form 47 (Record of Induction) and DA Form 41 (Record of Emergency Data) show he was inducted using the last name of "W---------n," as shown on his DD Form 214.  All documents in his records also show he used the same last name as shown on his DD Form 214.

3.  He completed training and he was assigned military occupational specialty 64B (heavy vehicle driver).  He served in Germany from 5 July to 10 November 1967.  He served in Vietnam from 8 January to 11 April 1968 during three campaigns.  He served with the 87th Transportation Company from 14 January through 18 January 1968 and with the 572nd Transportation Company from
19 January through 25 March 1968.  He was further assigned to the U.S. Army Vietnam Patient Casualty Company from 26 March 1968 to 11 April 1968 and transferred to the Medical Holding Detachment, U.S. Army Hospital, Ryukyu Islands until his return to the continental United States

4.  His records contain a Western Union telefax, dated 30 March 1968, wherein his parents were advised that he had been slightly wounded (metal fragment wounds to the back and abdomen) in Vietnam on 25 March 1968 as a result of hostile action and had been hospitalized.

5.  His DA Form 20 (Enlisted Qualification Record), Item 38 (Record of Assignments), shows he was in a patient status from 26 March 1968 to 11 April 1968.  It also shows he received "excellent" conduct and efficiency ratings through his service.  Item 40 (Wounds) of this form does not contain an entry describing his injury and date, and Item 41 (Awards and Decorations) of this form does not list the Purple Heart as an authorized award.

6.  On 16 August 1968, he accepted a summarized record of proceeding under Article 15, Uniform Code of Military Justice (UCMJ) for operating a passenger bus in a reckless manner by speeding 55 miles per hour in a 35 miles per hour zone on 5 August 1968.  His punishment consisted of restriction for 5 days and extra duty for 7 days.

7.  He was honorably released from active duty in the rank/grade of specialist four (SP4)/E-4 on 31 January 1969 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  Item 1 (Last Name, First Name, Middle Name) of his DD Form 214 contains the entry "W---------n, J---s D----d."  Item 32 (Signature of Person Being Separated) of his DD Form 214 shows he signed using the same last name as entered in Item 1.

8.  Entries on his DD Form 214, Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), list the following awards:  the National Defense Service Medal, Vietnam Service Medal with two bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), two Overseas Service Bars, and the Expert Marksmanship Qualification Badge with Rifle Bar (M-14).

9.  There is no evidence in his service personnel records to show he applied for a legal name change of his last name while he served on active duty in the Army.

10.  He was discharged from the USAR on 1 January 1975 and issued orders showing the same last name as shown on his DD Form 214.

11.  The Vietnam Casualty Roster shows he was wounded on 25 March 1968 with casualty status code "23."  This code indicates he was "hostile wounded in action, not serious, hospitalized."

12.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant.

13.  Army Regulation 600-8-22 (Military Awards) states 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.

14.  Army Regulation 672-5-1 (Military Awards), then in effect, 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.

15.  The applicant’s DD Form 214 shows that he was awarded the Vietnam Service Medal with two bronze service stars.  Paragraph 2-13 of Army Regulation 600-8-22 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 Counteroffensive, Phase III (1 June 1967 - 29 January 1968)
* Tet Counteroffensive (30 January 1968 - 1 April 1968)
* Vietnam Counteroffensive Phase IV (2 April 1968 - 30 June 1968)

16.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) was published to assist commanders and personnel officers in determining or establishing the eligibility of Soldiers for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  Paragraph 6d states that Department of the Army General Orders 8, 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to the following units:

	a.  Headquarters, United States Military Assistance Command and its subordinate units during the period 8 February 1962 to 28 March 1973.

	b.  Headquarters, United States Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973.

DISCUSSION AND CONCLUSIONS:

1.  There are no general orders that show the applicant was awarded the Purple Heart.  However, the evidence of record and the Vietnam Casualty Roster shows he was wounded as a result of hostile action in Vietnam on 25 March 1968.  Despite the lack of general orders awarding him the Purple Heart, the evidence shows he is qualified for award of the Purple Heart.  Therefore, he is entitled to award of the Purple Heart and correction of his records to show this award.

2.  The evidence of record shows the applicant had "excellent" conduct and efficiency ratings throughout his service.  There is evidence of a minor indiscipline during his service; however, this minor indiscipline should not over-shadow his achievements.  While in the Army, he attained the rank/grade of SP4/E-4, completed a tour in Vietnam, and received "excellent" conduct and efficiency ratings.  There is also no evidence of a commander's disqualification.  Therefore, he is entitled to award of the Army Good Conduct Medal (First Award) for the period 1 February 1967 to 31 January 1969 and to have it added to his DD Form 214.

3.  General orders authorized the applicant's unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  This unit award is not shown on his DD 

Form 214.  Therefore, he is also entitled to have his DD Form 214 corrected to show this unit award.  He is also eligible to wear three bronze service stars on his Vietnam Service Medal.

4.  The evidence of record shows the applicant was inducted into the Army of the United States using the last name as shown on his DD Form 214.  Throughout his period of service in the Army up to his release from active duty on 31 January 1969 and in the USAR Control Group, he served under the same last name as shown on his DD Form 214.  In his case, the records reflect the last name he preferred to use at the time of induction in the Army of the United States and under which this military service was performed.

5.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, there is a reluctance to recommend that those records be changed.  While it is understandable the applicant desires to now record his correct last name in his military records, there is not a sufficiently compelling reason for compromising the integrity of the Army’s records at this late date.

6. The applicant is advised that a copy of this decisional document along with his application will be filed in his Official Military Personnel File (OMPF).  This should serve to clarify any questions or confusion in regard to the difference in the last name recorded in his military record and to satisfy his desire to have his requested last name documented in his OMPF.

7.  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.  deleting from item 24 of his DD Form 214 the Vietnam Service Medal with two bronze service stars,

	b.  awarding him the Purple Heart for wounds received as a result of hostile action in the Republic of Vietnam on 25 March 1968;

   c.  awarding him the Army Good Conduct Medal (First Award) for the period
1 February 1967 to 31 January 1969;

	d.  adding to item 24 of his DD Form 214 the Purple Heart, Army Good Conduct Medal (First Award), Vietnam Service Medal with three bronze service stars, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation; and

	e.  providing the applicant a corrected DD Form 214.

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 correction to the last name shown on 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)                                         AR20090018223



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ABCMR Record of Proceedings (cont)                                         AR20090018223



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