IN THE CASE OF:	  

		BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20090019942 


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.

2.  The applicant states that he received the Purple Heart, but it is not listed on his DD Form 214.

3.  The applicant provides a copy of his DD Form 214, dated 17 July 1970, and a copy of a certificate, dated 29 April 1970, showing award of the Purple Heart.

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 for a period of 3 years on 16 October 1967 and he held military occupational specialty 13E (Field Artillery Operations Intelligence Assistant).

3.  His records also show he served in the Republic of Vietnam from on or about 18 March 1968 to on or about 17 March 1969 while he was assigned to Battery C, 6th Battalion, 77th Artillery.  He also served in Vietnam from on or about 4 December 1969 to on or about 4 June 1970 while he was assigned to Battery D, 2nd Battalion, 320th Field Artillery Regiment.

4.  He was honorably released from active duty on 17 July 1970 in the rank/grade of specialist four (SP4)/E-4 and he was transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining Reserve 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, Vietnam Service Medal with one bronze service star, Republic of Vietnam Campaign Medal with Device (1960), Army Commendation Medal, one overseas service bar, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and Expert Marksmanship Qualification Badge with Rifle Bar (M-14).

6.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he suffered a fragment wound to his chest on 28 April 1970.  However, his records do not show official orders awarding him the Purple Heart.

7.  His name is shown on the Vietnam casualty roster under code "23" indicating he was wounded as a result of hostile action.  The date of injury is listed as 28 April 1970.

8.  His records also contain an official Army message and a Western Union telefax, dated 29 April 1970, both of which show he suffered a fragment wound to his back and right ankle in Vietnam on 28 April 1970.

9.  He submitted a copy of a certificate issued by the 17th Field Hospital on 29 April 1970 awarding him the Purple Heart for wounds received in action in the Republic of Vietnam when his area came under mortar attack by a hostile force.

10.  Army Regulation 600-8-22 (Military Awards) provides 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.

11.  A review of the applicant's records indicates his entitlement to additional awards and decorations that are not shown on his DD Form 214.

12.  Headquarters, 9th Infantry Division, General Orders Number 2308, dated 28 February 1969, awarded him the Army Commendation Medal for meritorious service from March 1968 to February 1969.

13.  Headquarters, 101st Airborne Division, General Orders Number 4111, dated 13 April 1970, awarded him the Army Commendation Medal for meritorious service from 1 November 1969 to 31 March 1970.

14.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the following:

	a.  During his service with Battery C, 77th Artillery, this unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders (DAGO) Number 48, dated 1971, and the Republic of Vietnam Civil Actions Honor Medal First Class Citation based on DAGO Number 51, dated 1971.

	b.  During his service with Battery D, 2nd Battalion, 320th Field Artillery Regiment, this unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on DAGO Number 8, dated 1974, and the Republic of Vietnam Civil Actions Honor Medal First Class Citation based on DAGO Number 48, dated 1971.

15.  Appendix B of Army Regulation 600-8-22 shows the following campaigns relating to his service.

	a.  During his first period of service in Vietnam, he participated in five campaigns:  Tet Counteroffensive (30 January 1968 to 1 April 1968), Vietnam Counteroffensive Phase IV (2 April 1968 to 30 June 1968), Vietnam Counteroffensive Phase V (1 July 1968 to 1 November 1968), Vietnam Counteroffensive Phase VI (2 November 1968 to 22 February 1969), and Tet 69 Counteroffensive (23 February 1969 to 8 June 1969).

	b.  During his second period of service in Vietnam, he participated in three campaigns:  Vietnam Winter-Spring 1970 (1 November 1969 to 30 April 1970), DA Sanctuary Counteroffensive (1 May 1970 to 30 June 1970), and Vietnam Counteroffensive Phase VII (1 July 1970 to 30 June 1971).

	c.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.  A silver service star denotes five bronze service stars.

16.  A review of the applicant's service record shows he received nonjudicial punishment for unspecified misconduct on 2 December 1969 that resulted in a one-time forfeiture of pay.  However, there is other no other 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 "excellent" conduct and efficiency ratings throughout his military service.

17.  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.

18.  Army Regulation 670-1 (Wear and Appearance of Army Uniform and Insignia) provides guidance for wear of overseas service bars.  Paragraph 28-28 states that one overseas service bar is authorized for each 6-month period of active Federal service in Vietnam from 1 July 1958 to 28 March 1973.  The months of arrival to and departure from Vietnam are counted as whole months for credit toward the overseas service bar.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show awards of the Purple Heart.

2.  The evidence of record shows the applicant suffered a fragment wound to his right arm on 28 April 1970 and his name is shown on the Vietnam casualty roster as wounded as a result of hostile action.  Therefore, there is sufficient evidence to show the applicant is entitled to award of the Purple Heart and correction of his DD Form 214 to show this award.

3.  General orders awarded him two awards of the Army Commendation Medal, one of which is not listed on his DD Form 214.  Therefore, he is entitled to correction of his DD Form 214 to show both awards of the Army Commendation Medal.

4.  General orders awarded the applicant's units of assignment in Vietnam two awards of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and two awards of the Republic of Vietnam Civil Actions Honor Medal First Class Citation which are not shown on his records.  Therefore, he is entitled to correction of his records to show these unit awards.

5.  The evidence of record shows the applicant served in the Republic of Vietnam from on or about 18 March 1968 to on or about 17 March 1969 and from on or about 4 December 1969 to on or about 4 June 1970.  Therefore, he is entitled to correction of his records to show three overseas service bars.

6.  The evidence of record shows the applicant was awarded the Vietnam Service Medal.  Additionally, records show he participated in a total of eight campaigns while serving in the Republic of Vietnam.  Therefore, he is entitled to a silver service star and three bronze service stars to be affixed to his already-awarded Vietnam Service Medal.

7.  The evidence of record confirms he served honorably during the period 16 October 1967 through 17 July 1970.  He completed a combat tour in Vietnam, received "excellent" conduct and efficiency ratings throughout his military service, attained the rank/grade of SP4/E-4, and was wounded in combat.  Aside from unspecified nonjudicial punishment resulting in a one-time pay forfeiture on 3 December 1969, his record is void of any other derogatory information on file that would have disqualified him from award of the Army Good Conduct Medal.  Therefore, it would be appropriate to award the applicant the first award of the Army Good Conduct Medal based on completion of a qualifying period of Federal military service and correction of his records to show this award.

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 applicant the Purple Heart for wounds received in action on 28 April 1970 in the Republic of Vietnam;

	b.  awarding the applicant the Army Good Conduct Medal (1st Award) for exemplary behavior, efficiency, and fidelity during the period 16 October 1967 through 17 July 1970;

	c.  deleting from his DD Form 214 the Army Commendation Medal, Vietnam Service Medal with one bronze service star, and one overseas service bar; and

	d.  adding to his DD Form 214 the Purple Heart, Army Commendation Medal (1st Oak Leaf Cluster), Army Good Conduct Medal (1st Award), Vietnam Service Medal with one silver and three bronze service stars, two awards of the Republic of Vietnam Gallantry Cross with Palm Unit Citation, two awards of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and three overseas service bars.



      ____________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)                                         AR20090019942



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ABCMR Record of Proceedings (cont)                                         AR20090019942



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