IN THE CASE OF:	

		BOARD DATE:	  18 May 2010

		DOCKET NUMBER:  AR20090019338 


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 all other awards he may have earned.

2.  The applicant states when he received the Bronze Star Medal with "V" Device he was told the Purple Heart was delayed due to the tactical situation.  He was injured in Vietnam on a day when the medic was on leave.  They flew in a doctor in the middle of the night due to high casualties and his unit acted as the ground support as the doctor treated the wounded.  He made many trips transporting several of the wounded to the helicopter.  When his vehicle received a direct hit the doctor was in a hurry to get out of there due to heavy incoming rounds.  He [the applicant] got blown out of his vehicle and he remembers getting back to his bunker.  He has a scar on his head and his ankle as well as a ricochet on his right calf.  His unit first sergeant told him it wasn't bad, to just bandage it.  He now has too many medical problems in his wrists, ears, tonsils, shoulder, right knee, and neck and realizes that he should have received the Purple Heart.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 18 September 1970; a copy of General Orders Number 633, issued by Headquarters, I Field Force Vietnam, on 19 September 1969; a copy of page 4 of his 4-page DA Form 20 (Enlisted Qualification Record); a copy of Letter Orders Number 08-1220744, issued by the Office of the Adjutant General, U.S. Army Reserve Components Personnel and Administration Center, St. Louis, MO, dated 15 August 1973; photographs of a destroyed vehicle; a sketch map and information of the Battle of Ben Het, Vietnam; a copy of the cover page of the November/December 2007 "Voice of Vietnam Veterans of America" magazine; a copy of an article, dated
5 April 2009, of the lesson of the Battle of Ben Het; and a copy of an internet printout, dated 23 August 2009, of information regarding improvised explosive devices (IEDs).

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 enlisted in the Regular Army on 20 September 1967 and he was awarded military occupational specialty 36K (Wireman).

3.  His records show he served in Vietnam from on or about 15 January 1969 to on or about 15 January 1970.  He was assigned to B Battery, 6th Battalion, 14th Artillery.

4.  He was honorably released from active duty in the rank of sergeant (SGT)/E-5 on 18 September 1970.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his military service obligation.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the National Defense Service Medal, Army of Occupation Medal [with Germany Clasp] (Berlin), Vietnam Service Medal with one bronze service star, Bronze Star Medal with "V" Device, and the Republic of Vietnam Campaign Medal with Device (1960).

6.  Item 40 (Wounds) of his DA Form 20 is blank, there are no official orders in his records that show he was awarded the Purple Heart, his name is not shown on the Vietnam Casualty Listing, and his medical records are not available for review with this case
7.  Item 41 (Awards and Decorations) of his original DA Form 20 does not list award of the Purple Heart. 

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

9.  He was awarded the Bronze Star Medal with "V" Device for heroism in connection with military operations against a hostile force on 23 June 1969 in Vietnam.  General Orders Number 633, dated 19 September 1969, cited the following:

At 0330 hours, while the North Hill was under heavy ground and mortar attack, [Applicant] volunteered to take whole blood and a doctor to a critically wounded man on the hill.  Although he was fully aware that there were enemy Soldiers inside the North Hill's wire at the time and that he could expect sniper fire on the half mile long trip over steep and slippery roads, [Applicant] volunteered for the trip without hesitation.  He then helped to defend the perimeter and to shuttle wounded to the helipad.  Later the same morning he volunteered to make the trip a second time to carry seriously wounded Vietnamese soldiers to the medical evacuation helicopter.  On the way, his vehicle received a direct hit by an 82mm mortar, but he managed to move the personnel the rest of the way to the helicopter despite the heavy volume of incoming rounds.

10.  He submitted the following documents:

	a.  A copy of page 4 of his 4-page DA Form 20.  Item 41 (Awards and Decorations) lists the Purple Heart.  It does not list an order number; however, it lists the date as 29 September 1969 and the authority as Army Regulation
600-8-22 (Military Awards) and Headquarters, I Field Force.

	b.  Photographs of a destroyed vehicle.

	c.  A sketch map and information of the Battle of Ben Het, Vietnam.  The map shows Ben Het, South Vietnam, and the location of the Special Forces camp that was under siege at the time.

	d.  A copy of the cover page of the November/December 2007 "Voice of Vietnam Veterans of America" magazine showing a photograph of a uniformed bearded individual with his right fist raised.

	e.  A copy of an article, dated 5 April 2009, of the lesson of the Battle of Ben Het, detailing the impact of this particular battle on the Vietnam war.

	f.  A copy of an internet printout, dated 23 August 2009, of information regarding IEDs.

11.  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.

12.  Headquarters, U.S. Army Training Center, Infantry, Fort Lewis, WA, Special Orders Number 297, dated 2 November 1967, awarded him the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14).

13.  A review of his service record shows no derogatory information that would disqualify him for the first award of the Army Good Conduct Medal.  Furthermore, item 38 (Record of Assignments) of his DA Form 20 shows he received all "excellent" conduct and efficiency ratings throughout his military service.

14.  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 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.

15.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that during his assignment to Battery B, 6th Battalion, 14th Artillery, his unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation from 23 October 1965 to 23 June 1970 based on Department of the Army General Orders (DAGO) 55, dated 1971.  Additionally, Battery B was cited for award of the Valorous Unit Award from 4 May 1969 to
28 June 1969 based on DAGO 48, dated 1971.



16.  The applicant’s DD Form 214 shows that he was awarded the Vietnam Service Medal with one bronze service star 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, 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 four campaigns:

* Vietnam Counteroffensive, Phase VI (2 November 1968 - 22 February 1969)
* Tet 69 Counteroffensive, 1969 (23 February 1969 - 8 June 1969)
* Vietnam Summer-Fall 1969 (9 June 1969 - 31 October 1969)
* Vietnam Winter-Spring 1970 (1 November 1969 - 30 April 1970)

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the Purple Heart and all other awards he may have earned.

2.  The evidence of record confirms he served honorably from 20 September 1967 through 18 September 1970.  He attained the rank/grade of SGT/E-5, he was awarded a valor award, and he received "excellent" conduct and efficiency ratings throughout his service.  Lacking any derogatory information on file that would have disqualified him, it would be appropriate to award him 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 to correct his records to show this award.

3.  Special orders awarded him the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) which is not shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show this badge.

4.  General orders awarded the applicant’s unit of assignment the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Valorous Unit Award which are not shown on his DD Form 214; 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, his 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 Purple Heart, this award differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for the award.

7.  In the applicant's case, his service in Vietnam and heroism in action on 23 June 1969 under extremely hazardous conditions are not in question.  However, there is no evidence in his available service personnel records that shows he was wounded or injured as a result of hostile action or that he was treated for such wounds.  Regrettably, absent evidence which conclusively shows that he sustained wounds or injuries as a result of hostile action, 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 insufficient basis for awarding the applicant the Purple Heart in this case.

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 w/Bronze Service Stars";

	b.  awarding him the Army Good Conduct Medal (1st Award) for exemplary behavior, efficiency, and fidelity from 20 September 1967 through 18 September 1970; and

	c.  adding to his DD Form 214 the Army Good Conduct Medal (1st Award), Vietnam Service Medal with four bronze service stars. Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Valorous Unit Award.

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.



      __________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)                                         AR20090019338



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ABCMR Record of Proceedings (cont)                                         AR20090019338



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