IN THE CASE OF:	  

		BOARD DATE:	  17 June 2010

		DOCKET NUMBER:  AR20090019883 


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 include the Purple Heart.

2.  The applicant states if his DD Form 214 is corrected to include the Purple Heart, he will be allowed additional health benefits.

3.  The applicant provides a copy of his DD Form 214.

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 was inducted into the Army on 8 March 1967.  He completed his training as a light weapons infantryman.  He arrived in Vietnam on 13 August 1967.

3.  While in Vietnam, he participated in the following four campaigns:

* Vietnam Counteroffensive, Phase III Campaign, which extended from 1 June 1967 through 29 January 1968
* Tet Counteroffensive Campaign, which extended from 30 January 1968 through 1 April 1968
* Vietnam Counteroffensive, Phase IV Campaign, which extended from 2 April 1968 through 30 June 1968
* Vietnam Counteroffensive, Phase V Campaign, which extended from 1 July 1968 through 1 November 1968

4.  A Clinical Record Cover Sheet shows the applicant was treated at the 2nd Surgical Hospital on 21 November 1967, after he sustained a fragment wound (shrapnel) to his back.  According to the record:

* The wound was incurred as a result of hostile action
* The applicant was a battle casualty
* He was wounded by United States artillery

5.  The Clinical Record Cover Sheet shows he was not awarded the Purple Heart by hospital officials for the wounds he incurred in action.

6.  The applicant returned to the Continental United States on 12 August 1968.  He was honorably released from active duty on 7 March 1969, at the expiration of his term of service.  The DD Form 214 he was issued shows the following awards:

* National Defense Service Medal
* Vietnam Campaign Medal with Device "1960"
* Vietnam Service Medal
* Combat Infantryman Badge
* Bronze Star Medal
* One Overseas Service Bar
* Sharpshooter Marksmanship Qualification Badge with Rifle and Machine Gun Bars

7.  A review of the applicant's DA Form 20 (Enlisted Qualification Record) shows he received a fragment wound to his back on 21 November 1967.

8.  Item 38 of his DA Form 20 shows he received all "excellent" conduct and efficiency ratings and there is no derogatory information in his records.

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, and the medical treatment must have been made a matter of official record.

10.  Included as part of the Department of Defense Appropriations Act for fiscal year 1994 was an amendment to the rules governing award of the Purple Heart.  While the original rules established that the Purple Heart would be awarded to individuals killed or wounded as a result of hostile action the amendment enabled the Secretaries of each department to award the Purple Heart to members of the armed forces who were killed or wounded in action by weapon fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States.  This ruling, in effect, granted the service Secretaries the authority to award the Purple Heart to individuals directly engaged in armed conflict who were killed or wounded as a result of "friendly fire."

11.  Army Regulation 672-5-1 (Decorations and Awards), in effect at the time, provides that the Good Conduct Medal is awarded to individuals who have completed a qualified 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 Federal military service.  The enlisted person must have had all “excellent” conduct and efficiency ratings and no convictions by a court-martial.  Ratings of "Unknown" for portions of the period under consideration are not disqualifying.  Service and efficiency ratings based upon academic proficiency of at least "Good" rendered subsequent to 22 November 1955 are not disqualifying.

12.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the applicant was assigned to a unit that was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders (DAGO) Number 8, dated 1974.

13.  Appendix B of Army Regulation 600-8-22 shows that the applicant participated in four 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.


14.  Army Regulation 670-1 (Uniforms and Insignia), in effect at the time, governs the requirements for the Overseas Service Bar.  In pertinent part, it provides that a bar is authorized for wear for each period of active Federal service as a member of the U.S. Army outside of the continental limits of the United States for the specific time frames and areas of operation cited in Army Regulation 670-1 or appropriate Department of the Army message.  There are special provisions regarding authorization for the Overseas Service Bar for service in a hostile fire zone and for combining service to calculate award of the bars.

15.  For Vietnam service, one overseas service bar is authorized for each period of 6 months active Federal service as a member of a U.S. Service in Vietnam from 1 July 1958 to 28 March 1973.  Both the month of arrival and the month of departure from Vietnam are counted as whole months for credit toward the overseas service bar.

DISCUSSION AND CONCLUSIONS:

1.  Based on the medical documentation contained in the applicant's record and the amendment included as part of the Department of Defense Appropriations Act for fiscal year 1994, the applicant is authorized the award of the Purple Heart.

2.  Until 1994, there were no provisions for awarding the Purple Heart to individuals for friendly fire.  The evidence of record clearly shows that he was wounded by friendly fire, his wound was the result of hostile action, and he was listed as a battle casualty.  His wound was treated by competent medical authority; therefore, he meets the criteria for award of the Purple Heart for wounds received as a result of friendly fire.

3.  His records contain no derogatory information that would have disqualified him from being awarded the Army Good Conduct Medal and he received all "excellent" conduct and efficiency ratings.  Therefore, he should be awarded the Army Good Conduct Medal (first award) and this award should be included on his DD Form 214.

4.  He is also authorized the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on DAGO Number 8, dated 1974, an additional Overseas Service Bar, and four bronze service stars to be affixed to his already-awarded Vietnam Service Medal based on his campaign participation.

5.  He is also authorized two Overseas Service Bars in lieu of the one Overseas Service Bar now shown on his DD Form 214.


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.  deleting from his DD Form 214 one Overseas Service Bar;

	b.  awarding him the Purple Heart for wounds received on 21 November 1967, while serving in the rank of private first class;

	c.  awarding him the Good Conduct Medal for the period 8 March 1967 through 7 March 1969; and

	d.  amending his DD Form 214 to add the following awards:

* Purple Heart
* Good Conduct Medal
* Vietnam Gallantry Cross with Palm Unit Citation
* Two Overseas Service Bars
* Four bronze service stars 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)                                         AR20090019883



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ABCMR Record of Proceedings (cont)                                         AR20090019883



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