IN THE CASE OF:	  

		BOARD DATE:	  12 October 2010

		DOCKET NUMBER:  AR20100010991 


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.  He states he was not awarded the Purple Heart for a fragment wound to his right leg on 25 August 1968.  He was subsequently presented with a Silver Star.  His wound is noted on his DA Form 20 (Enlisted Qualification Record) in item 40 (Wounds) on page 4 and he was not aware it was annotated there.  This documentation of the wound suffered in combat was the basis of his appeal before the Board of Veterans Appeals.

3.  He provides copies of page 4 of his DA Form 20, general orders for the Silver Star, and his DD Form 214.

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 on 14 August 1967.  He completed training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  He served in Vietnam from 2 March 1968 through 21 March 1969 during four campaigns.  He was assigned to Company B, 2nd Battalion, 1st Infantry, 196th Infantry Brigade.

3.  General Orders Number 8563 were issued by Headquarters, Americal Division, on 9 November 1968 awarding him the Silver Star for gallantry in action against an armed hostile force in the Republic of Vietnam on 25 August 1968.

4.  On 14 June 1968, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for sleeping while on guard duty on 12 June 1968.

5.  He was honorably released from active duty in the rank and pay grade of specialist four (SP4)/E-4 on 24 March 1969 as an overseas returnee and was transferred to the U.S. Army Reserve (Annual Training).

6.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 lists the National Defense Service Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), Combat Infantryman Badge, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), two overseas service bars, Army Commendation Medal, and Silver Star.

7.  His DA Form 20, item 40, shows he sustained a fragment wound to his right leg on 25 August 1968.  Item 41 (Awards and Decorations) of his DA Form 20 shows his entitlement to award of the Expert Marksmanship Qualification Badge with Machinegun Bar (M-60) and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).  Item 38 (Record of Assignments) shows he had all "excellent" conduct and efficiency ratings.

8.  The Vietnam casualty roster shows he was wounded on 25 August 1968 and the casualty status code was "24."  This code indicates the status "hostile, wounded in action, not serious, not hospitalized."

9.  There are no orders in his military personnel records that show he was awarded the Purple Heart.  A review of the records of his unit for the time frame he served in Vietnam was conducted in the Awards and Decorations Computer Assisted Retrieval System.  This review failed to show any orders were published authorizing him award of the Purple Heart.

10.  Army Regulation 600-8-22 (Military Awards) specifies 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, and the medical treatment must have been made a matter of official record.

11.  Army Regulation 600-8-22 also specifies the Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  Although there is no automatic entitlement to the Army Good Conduct Medal, disqualification must be justified.

12.  Army Regulation 600-8-22 authorizes a bronze service star based on qualifying service for each campaign listed in appendix B and states that authorized bronze service stars will be worn on the appropriate campaign or service medal, including the Vietnam Service Medal.

13.  Department of the Army General Orders Number 8, dated 1974, authorized the award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to all personnel assigned to U.S. Army Vietnam.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant sustained a fragment wound to his leg as a result of enemy action in Vietnam 28 August 1968.  This is further confirmed with the listing of his name on the Vietnam casualty roster.  Despite the lack of general orders awarding him the Purple Heart, the evidence shows he is qualified for award of the Purple Heart.  He is therefore entitled to award of the Purple Heart and correction of his DD Form 214 to show this award.

2.  The evidence of record also shows he had "excellent" conduct and efficiency ratings during his service in the Army.  There is evidence of minor indiscipline (NJP on one occasion during his service); however, this minor indiscipline should not overshadow his achievements while he served in Vietnam.  While in the Army, he attained the rank and pay grade of SP4/E-4, served in Vietnam, was wounded in action, and was awarded the Silver Star.  Therefore, he is entitled to award of the Army Good Conduct Medal (1st Award) for the period 14 August 1967 through 24 March 1969 and to have it added to his DD Form 214.

3.  The evidence of record shows he was awarded the Expert Marksmanship Qualification Badge with Machinegun Bar (M-60) and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).  These awards are not shown on his DD Form 214.  Therefore, his DD Form 214 should be corrected to show these awards.

4.  The evidence of record confirms he participated in four campaigns while serving in Vietnam.  Therefore, he is entitled to award of four bronze service stars to be affixed to his already-awarded Vietnam Service Medal.

5.  General orders authorized his unit award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation during his tenure of assignment in Vietnam.  This unit award is not shown on his DD Form 214.  Therefore, he is entitled to have his DD Form 214 corrected to show this unit award.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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.  awarding him the Purple Heart for wounds received in the Republic of Vietnam on 25 August 1968 and the Army Good Conduct Medal (1st Award) for the period 14 August 1967 through 24 March 1969;

	b.  adding to Item 24 of his DD Form 214 the Purple Heart, Army Good Conduct Medal (1st Award), Republic of Vietnam Gallantry Cross with Palm Unit Citation, Expert Marksmanship Qualification Badge with Machinegun Bar (M-60), Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and four bronze service stars to be affixed to his Vietnam Service Medal; and


	c.  providing him a correction to his DD Form 214 that includes these awards.



      _______ _   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)                                         AR20100010991



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ABCMR Record of Proceedings (cont)                                         AR20100010991



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