IN THE CASE OF:	  

		BOARD DATE:	  31 August 2010

		DOCKET NUMBER:  AR20100009574 


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 (PH).

2.  The applicant states:

   a.  he was wounded in combat in the Republic of Vietnam (RVN), when the truck he was riding in hit an enemy landmine;

   b.  he was thrown 30 yards away from the vehicle and road into a field;

   c.  he was transported by helicopter to an Army aid station and he sustained shrapnel wounds to his rectum and shin, and compression fractures to his lower lumbar vertebrae;

   d.  he was awarded the PH in the hospital recovery room after initial colostomy surgery, pinned to the pillow of his bed by an unknown officer; and

   e.  apparently no order was published to reflect his PH award.

3.  The applicant provides the following documents:

* a self-authored statement
* a National Personnel Records Center (NPRC) letter
* a U.S. Army Vietnam (USARV) message, number 01015Z APR 69
* a Western Union Telegram
* a photocopy of a PH Medal and ribbon
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a Veterans Administration (VA) Letter with VA Disability Rating

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 military records show he was inducted into the Army of the United States and entered active duty on 29 May 1968.  He was trained in, awarded, and served in military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) confirms he served in the RVN from 24 October 1968 to 8 April 1969.  The PH is not included among the list of awards shown in Item 41 (Awards and Decorations).

4.  The applicant’s Official Military Personnel File (OMPF) includes a Western Union Telefax and USARV message, #010155Z APR 69 that show he was slightly wounded when the military vehicle he was riding in detonated a mine previously placed by a hostile force.  These documents also show he received wounds to his rectum and forehead.

5.  The applicant’s OMPF also contains a DA Form 8-275-2 (Clinical Record Cover Sheet) completed on 9 January 1970.  It shows the medical treatment the applicant received as a result of being wounded in the RVN on 31 March 1969.

6.  On 9 January 1970, the applicant was honorably released from active duty (REFRAD) in the rank/grade of specialist four (SP4)/E-4.  The DD Form 214 he was issued upon his REFRAD shows that he completed 1 year, 7 months, and 11 days of total active service.

7.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he earned the following awards during his active duty service:

* Army Good Conduct Medal 
* National Defense Service Medal
* Vietnam Service Medal (VSM)
* RVN Campaign Medal with Device (1960)
* Sharpshooter Marksmanship Qualification Badge with M-14 Rifle Bar
* Marksman Marksmanship Qualification Badge with M60 Machinegun and M-16 Rifle Bars

8.  During the processing of this case, a member of the Board staff reviewed the Vietnam Casualty Listing.  This list contains an entry pertaining to the applicant that shows a casualty status code of 23, indicating he was "hostile wounded in action - not serious - hospitalized" on 31 March 1969.

9.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states that the PH is awarded to any member who has been wounded or killed in action.  A wound is defined as an injury to any part of the body from an outside force or agent sustained under conditions defined by this regulation.  In order to support awarding a member the PH, it is necessary to establish that the wound for which the award is being made required treatment by a medical officer.  This treatment must be supported by records of medical treatment for the wound or injury received in action and must have been made a matter of official record.

10.  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 V (1 July - 1 November 1968)
* Vietnam Counteroffensive Phase VI (2 November 1968 - 22 February 1969)
* Tet 69, Counteroffensive, 1969 (23 February - 8 June 1969)

11.  Department of the Army General Order Number 8, dated in 1974, authorized the award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to all personnel assigned to the RVN from 8 February 1962 through 28 March 1973.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to the PH.

2.  The evidence of record confirms the applicant was wounded in action, received medical treatment for his wounding, and a record of his treatment is documented in his military record as evidenced by the Western Union Telefax, USARV message, #010155Z APR 69, and DA Form 8-275-2 contained in his OMPF.  In addition, the applicant’s name is included on the Vietnam Casualty Listing, the official DA list of RVN battle casualties.  As a result, the regulatory burden of proof necessary to support award of the PH has been met in this case. Therefore, it would be appropriate to award the applicant the PH and to add it to his DD Form 214 at this time.

3.  The evidence of record also confirms that based on his service and campaign participation in the RVN, the applicant is entitled to the RVN Gallantry Cross with Palm Unit Citation and three bronze service stars for wear on his already-awarded VSM.  Therefore, it would be appropriate to add these awards to his DD Form 214 at this time.

4.  In view of the foregoing, the applicant's records should be corrected as recommended below.

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 being wounded in action in the RVN on 31 March 1969;
   
   c.  adding to item 24 of his DD Form 214 the Purple Heart, Vietnam Service Medal with three bronze service stars, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation; and

   d.  issuing a correction to the DD Form 214 to reflect these changes.



      ____________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)                                         AR20100009574



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)