IN THE CASE OF:	  

		BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20100000848 


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 to be awarded the Purple Heart.  He also requests correction of his records to show award of the Presidential Unit Citation (PUC) and the Meritorious Unit Commendation (MUC).

2.  The applicant states, in effect, he should have been awarded the Purple Heart because while serving in the Republic of Vietnam in 1967 he was working on a piece of washing equipment when it blew up in his face and set both of his arms on fire.  As a result, he sustained 1st, 2nd, and 3rd degree burns and was hospitalized for two to three weeks.  He continues that the Soldier who moved a fuel truck from the area and then drove him to the hospital received the Silver Star for his actions.  He concludes that he was going to protest the decision of two sergeants not to recommend him for award of the Purple Heart when he was released from the hospital, but one of them was transferred and the other was killed in an accident.

3.  The applicant contends, in effect, the unit to which he was assigned while serving in the Republic of Vietnam was cited for award of the PUC and the MUC for actions that occurred during his tenure, but the documentation never made it into his records. 

4.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).



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 record shows he was inducted into Army of the United States and entered active duty on 1 December 1966.  He completed basic combat training and advanced individual training.  Upon completion of advanced individual training he was awarded military occupational specialty 64B (Heavy Vehicle Driver).  The highest rank he attained while serving on active duty was specialist four (SP4)/pay grade E-4.  The applicant was released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) on 29 November 1968.

3.  Item 31 (Foreign Service) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he served a tour of duty in the Republic of Vietnam during the period 14 May 1967 through 8 May 1968.

4.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows that during his tour of duty in the Republic of Vietnam he served in the 221st Supply and Service Company during the period 29 May 1967 through 19 December 1967 and in Company A, 23rd Supply and Transport Battalion during the period 20 December 1967 through 3 May 1968.  There is no indication he was ever medically evacuated to a hospital or that his duty status was changed to "Patient."

5.  Item 38 of the applicant's DA Form 20 also shows he received conduct and efficiency ratings of "excellent" for each of his duty assignments.  Item 38 does not show the applicant was placed into a "Patient" duty status at a medical treatment facility at any time during his period of service.


6.  Item 40 (Wounds) of the applicant's DA Form 20 is blank.

7.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 and Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 show he was awarded or authorized to wear the:

* National Defense Service Medal
* Vietnam Service Medal with 3 bronze service stars
* Republic of Vietnam Campaign Medal with Device (1960)
* Sharpshooter Marksmanship Badge with Rifle Bar [M-14]

8.  There is no evidence in the available record showing he was awarded the Purple Heart.

9.  There is no evidence in the available record showing he sustained any injuries as a result of hostile action or that he was treated for wounds sustained as a result of hostile action.  Additionally, his name does not appear on the Republic of Vietnam Casualty Roster.

10.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 
1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant.

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, 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.  This regulation also provides, in pertinent part, 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.  It also provides examples of injuries or wounds which clearly do not justify award of the Purple Heart.  This includes accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.


12.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows unit awards received by units serving in the Republic of Vietnam.  This regulation shows units to which the applicant was assigned while serving in the Republic of Vietnam, were cited for the following awards for accomplishments during his tenure:

	a.  the MUC for actions during the period 20 July 1966 through 1 June 1967 by Department of the Army General Orders (DAGO) Number 54, dated 1968 and again during the period 1 January 1968 through 31 August 1969 by DAGO Number 53, dated 1970; and

	b.  the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Department of the Army General Orders Number 8, dated 1974.

13.  Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia) states unit awards are authorized for permanent wear by an individual who was assigned and present for duty with the unit at any time during the period cited or who was attached to and present for duty with the unit for at least 30 consecutive days of the period cited.

14.  Army Regulation 600-8-22 states an oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the MUC.

15.  Appendix B of Army Regulation 600-8-22 shows the campaigns for Vietnam. During the applicant's tour in Vietnam he participated in four campaigns:  the Vietnam Counteroffensive Phase II, the Vietnam Counteroffensive Phase III, the TET Counteroffensive, and the Vietnam Counteroffensive Phase IV.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

16.  Army Regulation 672-5-1 (Awards), in effect at the time, provided that the Good Conduct Medal was awarded to individuals who had 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his record should be corrected to show he was awarded the Purple Heart, the PUC, and the MUC were carefully considered and determined to have partial merit.

2.  General orders awarded the applicant's unit the MUC for accomplishments during his tenure in the unit.  Therefore, he is entitled to have his records corrected to show this unit award.

3.  General orders awarded the applicant's unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation for accomplishments during his tenure in the unit.  Therefore, he is entitled to have his records corrected to show this foreign unit award.

4.  Records show that the applicant was previously awarded the Vietnam Service Medal.  Evidence shows that he participated in four campaigns during his service in the Republic of Vietnam.  Therefore, he is eligible for award of a fourth bronze service star to be affixed to his previously-awarded Vietnam Service Medal with 3 bronze service stars.

5.  Evidence of record shows the applicant completed a period of honorable service during which he received all “excellent” conduct and efficiency ratings and had no convictions by a court-martial.  Additionally, there is no evidence that the applicant was disqualified by his chain of command from receiving the Good Conduct Medal.  Therefore, he is entitled to award of the Good Conduct Medal (first award) for the period of 1 December 1966 through 29 November 1968 and entitled to correction of his records to show this award.

6.  The applicant contends he sustained an injury while working on a piece of washing equipment which exploded in his face.  Although this incident occurred in the Republic of Vietnam, it appears it was the result of an accident.  Accidental injury not related to or caused by enemy action does not meet the eligibility criteria for award of the Purple Heart.  Absent evidence which conclusively shows that the applicant sustained wounds or injuries as a result of hostile action or as a result of "friendly fire" in the "heat of battle," that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is insufficient basis for awarding him the Purple Heart in this case.

7.  Department of the Army Pamphlet 672-3 does not show either of the units to which the applicant was assigned while serving in the Republic of Vietnam were cited for award of the PUC for accomplishments during his tenure.  Therefore, there is insufficient evidence to correct his records to show award of the PUC.


8.  This action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ____x____  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented was sufficient to warrant a recommendation for partial 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 Good Conduct Medal (first award) for the period 1 December 1966 through 29 November 1968;

	b.  deleting the Vietnam Service Medal with 3 bronze service stars from item 24 of the applicant's DD Form 214; and

	c.  adding the following awards to item 24 of the applicant's DD Form 214:

		(1)  the Good Conduct Medal (first award);

		(2)  the Meritorious Unit Commendation;

		(3)  the Republic of Vietnam Gallantry Cross with Palm Unit Citation; and

		(4)  the Vietnam Service Medal with 4 bronze service stars.


2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the Purple Heart and the Presidential 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)                                         AR20100000848





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ABCMR Record of Proceedings (cont)                                         AR20100000848



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