BOARD DATE:	17 June 2010  

		DOCKET NUMBER:  AR20090021769 


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 he was wounded in Vietnam.  He was never awarded the Purple Heart and it is not on his DD Form 214.

3.  The applicant provides a copy of his DD Form 214, medical documents, and one page of his DA Form 20 (Enlisted Qualification Record).

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 of the United States on
16 September 1966.  His highest rank/grade attained was specialist four (SP4), E-4. 

3.  The applicant was assigned to Vietnam on 28 February 1967 with Battery C, 2nd Battalion, 40th Artillery, 199th Infantry Brigade.

4.  Item 40 (Wounds) on the applicant's DA Form 20 shows he sustained a cut on his shoulder when a friendly artillery round fell short on 30 December 1967.

5.  The applicant's name is listed on the Vietnam Casualty Roster for wounds he received in action on 30 December 1967 under casualty code "23," which indicates he was hostile wounded in action, not serious, hospitalized.

6.  The applicant’s medical documents show he was treated for a shrapnel wound to his right shoulder.

7.  The applicant departed Vietnam on 26 February 1968. 

8.  He was honorably released from active duty on 13 September 1968 in the rank/grade of SP4/E-4.  He completed 1 year, 11 months, and 28 days of active military service with no time lost.

9.  His DA Form 20 shows his conduct and efficiency ratings as "excellent" throughout his period of service.  His service record does not contain any disciplinary actions or a commander's disqualification for award of the Army Good Conduct Medal.

10.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded the following awards:

* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* One Overseas Service Bar
* Expert Marksmanship Qualification Badge with Rifle Bar (M-14)

11.  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.

12.  Army Regulation 600-8-22 also provides for award of the Purple Heart to individuals wounded or killed as a result of “friendly fire” in the “heat of battle” as long as the “friendly” projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.

13.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This pamphlet shows the unit to which the applicant was assigned,
2nd Battalion, 40th Artillery, was cited for award of the following unit awards:

* Meritorious Unit Commendation by Headquarters, Department of the Army 
   General Order (DAGO) Number 5, dated 1969
* Republic of Vietnam Gallantry Cross with Palm Unit Citation by DAGO 
   Number 43, dated 1970
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation by 
   DAGO Number 51, dated 1971

14.  Army Regulation 600-8-22, paragraph 2-13, 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.  Appendix B shows that during his service in Vietnam, the applicant participated in the following three campaigns:

* Vietnam Counteroffensive, Phase II (1 July 1966 - 31 May 1967)
* Vietnam Counteroffensive, Phase III (1 June 1967 - 29 January 1968)
* Tet Counteroffensive (30 January 1968 - 1 April 1968)

15.  Army Regulation 672-5-1 (Awards), in effect at the time, stated the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940; for first award only, 1 year served entirely during the period 7 December 1941 to 2 March 1946; and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  The enlisted person must have had all "excellent" conduct and efficiency ratings.  There must have been no convictions by a court-martial.


16.  Army Regulation 670-1 (Uniforms and Insignia) governs the requirements for the overseas service bar.  It states 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.  For Vietnam service, one overseas service bar was 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 were counted as whole months for credit toward the overseas service bar.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was wounded in Vietnam and he was never awarded the Purple Heart is acknowledged and is supported by the evidence of record.

2.  The applicant’s service record does not contain orders which authorize him award of the Purple Heart.  However, his name is listed on the Vietnam Casualty Roster showing he was wounded in action on 30 December 1967 and his DA Form 20 shows he was wounded in action on 30 December 1967 in Vietnam.  In addition, his medical documents confirm he sustained a fragment wound to his right shoulder on 30 December 1967.  This corroborating evidence is sufficient as a basis on which to grant award of the Purple Heart to the applicant and correction of his records to show this award.

3.  It appears that the applicant has met the regulatory requirements for the first award of the Army Good Conduct Medal for a qualifying period from 16 September 1966 through 13 September 1968.  His service record shows he received "excellent" conduct and efficiency ratings and he was advanced to SP4/E-4 during this period.

4.  The applicant was assigned to the 2nd Battalion, 40th Artillery, during a period it was awarded the Meritorious Unit Commendation, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  Therefore, these unit awards should be added to his DD Form 214.

5.  The applicant’s DD Form 214 currently reflects the Vietnam Service Medal.  However, he received credit for participation in three campaigns during the Vietnam War.  Therefore, his DD Form 214 should be amended to reflect three bronze service stars for wear on his already-awarded Vietnam Service Medal.

6.  The applicant served in Vietnam from 28 February 1967 through 26 February 1968, which entitles him to two overseas service bars.  Therefore, his DD Form 214 should be corrected accordingly.

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 item 24 of his DD Form 214 the entry "One Overseas Service Bar";

	b.  awarding him the Purple Heart for wounds received in action on 30 December 1967;

	c.  awarding him the Army Good Conduct Medal for the period 16 September 1966 through 13 September 1968; and

	d.  adding to item 24 of his DD Form 214 the Purple Heart, Army Good Conduct Medal, Vietnam Service Medal with three bronze service stars for wear on his already-awarded Vietnam Service Medal Meritorious Unit Commendation, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and two 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)                                         AR20090021769



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ABCMR Record of Proceedings (cont)                                         AR20090021769



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