IN THE CASE OF:	  

		BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20100000225 


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.  

2.  The applicant states the following:

* He never received a Purple Heart for injuries incurred due to his Vietnam service
* He saw two guys on a mountain shooting and he told his assistant to get out of the vehicle and they both jumped out
* He shot in the mountains and hit the people who were shooting at them
* An escort truck hit a land mine and he was behind the truck
* The loud explosion injured his ears

3.  The applicant provides the following documents in support of his application:

* Two National Guard Bureau (NGB) Forms 22 (Report of Separation and Record of Service) for the periods ending 2 November 1983 and 22 April 1986
* Photograph of a truck
* Department of Veterans Affairs (DVA) Rating Decision, dated 10 June 2009





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 9 December 1965.  His highest rank/pay grade attained was specialist four (SP4), E-4.  

3.  The applicant was assigned to Vietnam on 15 September 1966 with Troop A, 1st Squadron, 10th Cavalry.  

4.  Item 40 (Wounds) on the applicant's DA Form 20 (Enlisted Qualification Record) shows he sustained burns on his arms and face on 20 April 1967.  His name is not listed on the Vietnam Casualty Roster for these wounds.  

5.  Item 38 (Record of Assignments) on his DA Form 20 shows he was transferred to the 106th General Hospital in Japan on 1 May 1967.  He departed Japan on about 22 November 1967.   

6.  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.

7.  The applicant was honorably released from active duty on 23 November 1967 in the rank of SP4.  He completed 1 year, 11 months, and 15 days of active military service with no time lost.  He subsequently served in the Army National Guard.  




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

* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Republic of Vietnam Campaign Medal with Device (1960)
* Vietnam Service Medal

9.  The applicant’s DVA Rating Decision shows his service connection for bilateral hearing loss was increased from zero percent to a 10 percent disability rating.  

10.  Headquarters, Department of the Army General Orders (DAGO) Number 8, dated 1974, awarded all units which served in Vietnam the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

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 600-200, chapter 9 of the version in effect at the time, stated, in pertinent part, that a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization would be entered in item 40 (wounds) of the DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in item 40.

13.  Army Regulation 600-8-22, paragraph 2-13, contains the regulatory guidance on the Vietnam Service Medal.  It states 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 Vietnam Counteroffensive, Phase II campaign.  

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be awarded the Purple Heart based on injuries he received in Vietnam are acknowledged.  The available evidence is sufficient to grant the relief requested.  

2.  The applicant’s service record does not contain orders which authorize him award of the Purple Heart.  However, his DA Form 20 shows he was wounded in action on 20 April 1967 in Vietnam and he was transferred to a military hospital in Japan.  This available evidence is sufficient to correct the applicant's DD Form 214 to show the Purple Heart.

3.  It appears the applicant has met the regulatory requirements for the first award of the Army Good Conduct Medal for a qualifying period from 9 December 1965 through 23 November 1967.  His service record shows he received "excellent" conduct and efficiency ratings and he was advanced to SP4 during this period.

4.  The Republic of Vietnam Gallantry Cross with Palm Unit Citation was awarded to all units which served in Vietnam.  The applicant was assigned to a unit which served in Vietnam.  Therefore, his DD Form 214 should be amended to show the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

5.  The applicant’s DD Form 214 currently reflects the Vietnam Service Medal.  However, he received credit for participation in one campaign during the Vietnam War.  Therefore, his DD Form 214 should be amended to reflect one bronze service star 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:

	     a.  awarding him the Purple Heart for wounds sustained on 20 April 1967;

	     b.  awarding him the Army Good Conduct Medal for the period 
9 December 1965 through 23 November 1967;

	     c.  amending his DD Form 214 by adding the Purple Heart, Army Good Conduct Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Vietnam Service Medal with one bronze service star; and 

	     d.  providing him a document that shows the above corrections.



      _______ _   _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)                                         AR20100000225



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ABCMR Record of Proceedings (cont)                                         AR20100000225



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