IN THE CASE OF:	  

		BOARD DATE:	  27 July 2010

		DOCKET NUMBER:  AR20100000172 


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.  He would like it added to his DD Form 214 (Report of Transfer or Discharge).

2.  The applicant states he was hit in the right shoulder by a fragment from an enemy mortar.  He told the medic that he had been hit, but would be all right.  At that time it was considered disgraceful to seek the Purple Heart for a minor wound.   In February 2009, he was in contact with Army buddies from his company who encouraged him to seek the Purple Heart.  The talk of various firefights and ambushes raised his consciousness and prompted his willingness to confront the past.  Since then, he has sought help from the Department of Veterans Affairs (VA) psychologists and now gets VA compensation for post traumatic stress disorder (PTSD).  His service medical record shows that he did have a fragment removed from his right shoulder on 25 February 1970.  He wrote his girlfriend [now his wife of 39 years] about the fragment at the time it happened and he had it removed.

3.  The applicant provides copies of his DD Form 214; VA Form 10-5345a (Individuals' Request for a Copy of Their Own Health Information), dated 1 May 2009; DA Form 2658 (Health Record-Abstract of Service), which he identifies as the first page of his in-service health record; health record page, dated 25 February 1970; and envelopes and letters to his now wife, from Vietnam, dated 29 November 1968 and 29 May 1969 and from Fort Lewis, WA, postmarked on 25 February 1970.


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 22 March 1968, completed training as an infantryman, and served in Vietnam with
A Company, 2nd Battalion, 28th Infantry from 19 August 1968 to 14 August 1969.  He was in a casual status until 23 September 1969 when he reported to Fort Lewis, Washington.

3.  He was honorably released from active duty on 20 March 1970 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 list his awards as the National Defense Service Medal, Expert Marksmanship Qualification Badge with Rifle Bar (M-14), Combat Infantryman Badge, Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), [Republic of] Vietnam Campaign Medal [with Device (1960)], Vietnam Service Medal, Air Medal, and the Army Good Conduct Medal.

5.  The applicant's letters to his now wife show:

* in his 29 November 1968 letter, he wrote, "…If I tell you something don't worry, OKAY.  I got hit with a piece of shrapnel from a N.V.A. (North Vietnam Army) mortar.  Just in the Shoulder.  It's not bad at all, I didn't even tell my squad leader.  So see nothing to worry about…."
* in his 27 May 1969, letter he wrote, "…Honey on the piece of shrapnel I've got , it isn't worth taking out, it’s the size of a PIN HEAD you would never notice it, if I didn't tell you where it was…."
* in his 25 February 1970, letter he wrote, "…Well I finally did what you have asked me to do so many times.  I went to sick call this morning and had the shrapnel removed from my right arm.  Now it does hurt, but at least I'll be safe.  Right…."

6.  The health record page, dated 25 February 1970, shows he was seen for right arm pain associated with an old shrapnel wound and removal of a BB-sized fragment under local anesthesia.

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

8.  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 four campaigns:

* Vietnamese Counteroffensive Phase V (1 July - 1 November 1968)
* Vietnamese Counteroffensive Phase VI (2 November 1968 - 22 February 1969)
* Tet 69/Counteroffensive  (23 February - 8 June 1969)
* Vietnam Summer - Fall 1969 (9 June - 31 October 1969)

9.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that the 2nd Battalion, 28th Infantry was awarded the:

* Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 12 July 1965 - 16 October 1968 by Department of the Army General Order (DAGO) 21, dated 1969
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period October 1965 - 7 April 1970 by DAGO 53, dated 1970.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was hit in the right shoulder by a fragment from an enemy mortar.  He told the medic that he had been hit, but would be all right.  At that time it was considered disgraceful to seek the Purple Heart for a minor wound.  In February 2009, he was in contact with Army buddies from his company who encouraged him to seek the Purple Heart.

2. The applicant's second reference to the wound in his personal letters was obviously made in response to some comment(s) from his now wife.  His decision to have the piece of shrapnel removed did not occur until after she had (probably) had an opportunity to see the wound.

3.  The record of medical treatment showing he had a piece of shrapnel removed from his shoulder, as corroborated by contemporaneous letters he sent to his wife explaining the enemy origin of the wound, is accepted as sufficient evidence to show he met the eligibility criteria for award of the Purple Heart.
  
4.  The applicant should be awarded the Purple Heart for the wound sustained in enemy action on or about 29 November 1969 and it should be added to his DD Form 214.

5.  He is also entitled to correction of his DD Form 214 to show the Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and four bronze service stars for wear on his already-awarded Vietnam Service Medal. 

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 Vietnam Service Medal;

   b.  awarding him the Purple Heart for wounds sustained as a result of hostile action on or about 29 November 1969; and 
   
   c.  adding to item 24 of his DD Form 214 the Purple Heart, Vietnam Service Medal with four bronze service stars, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.



      __________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)                                         AR20100000172



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ABCMR Record of Proceedings (cont)                                         AR20100000172



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