BOARD DATE:	  12 October 2010

		DOCKET NUMBER:  AR20100011866 


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 he was wounded in Vietnam on 25 February 1971 by fragments while a passenger in a military vehicle which came under a rocket attack by hostile forces.  He notes he sustained injuries to his forearm, right hand, and face.

3.  The applicant provides copies of two Western Union Telegrams addressed to his mother which are dated in March 1971 and extracts from his civilian medical treatment records noting treatment and surgical removal of a piece of shrapnel from his right forearm.

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.  Records available to the Board indicate the applicant was inducted and entered active duty on 18 September 1969.  Following completion of training he was assigned as a cannoneer with Battery A, 1st Battalion, 44th Artillery in Vietnam in March 1970.

3.  The applicant’s file contains a 3 March 1971 Western Union Telegram, addressed to the applicant’s mother, indicating the applicant “was wounded in action in Vietnam on 25 February 1971 by a fragment while a passenger on a military vehicle on a military mission when the area came under rocket attack by a hostile force.”  A subsequent telegram, dated 9 March 1971, notes the applicant was returned to duty.

4.  The applicant's name is listed on the Vietnam casualty roster for wounds received on 25 February 1971.  

5.  The applicant’s file also contains a Line of Duty (LOD) and Misconduct Status report which notes the applicant and two other Soldiers left their duty station against the orders of the section chief and their platoon sergeant.  The truck they were traveling in traveled about a quarter of a mile when an unknown size artillery round landed near the truck and threw shrapnel everywhere.  One of the individuals traveling with the applicant was killed in the action.  

6.  Statements included with the LOD investigation note the applicant and the other Soldiers refused to get off a truck which was leaving a fire base to return to a rear area.  The LOD investigating officer concluded the applicant was not present for duty and was absent without authority, but that intentional misconduct or neglect was not the proximate cause of his wounds.  The final LOD determination was “not in line of duty – not due to own misconduct.”  The LOD was approved on 11 May 1971.

7.  Additionally, in February 1971, prior to the date the applicant was wounded in action, orders were issued awarding him the Army Commendation Medal for meritorious service between April 1970 and April 1971.

8.  On 9 July 1971, the applicant was released from active duty with an honorable characterization of service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) reflects the following:

* National Defense Service Medal
* Vietnam Service Medal
* Two overseas service bars
* Republic of Vietnam Campaign Medal

9.  There is no indication in the applicant's official military personnel file that he was ever awarded the Purple Heart.  A review of the Awards and Decorations Computer-Assisted Retrieval System, 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.

11.  References:

	a.  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.

	b.  That same regulation states the Purple Heart differs from all other decorations in that an individual is not “recommended” for the decoration; rather he or she is entitled to it upon meeting specific criteria.  It also states individuals injured as a result of their own negligence; for example, driving or walking through an unauthorized area known to have been mined or placed off limits or searching for or picking up unexploded munitions as war souvenirs, will not be awarded the Purple Heart as they clearly were not injured as a result of enemy action, but rather by their own negligence.

	c.  Army Regulation 600-8-22 also 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.  Appendix B lists four designated campaigns during the applicant's service in Vietnam (Vietnam Winter-Spring, DA Sanctuary Counteroffensive, Vietnam Counteroffensive Phase VII, and Consolidation I).

	d.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the 44th Artillery was awarded a Republic of Vietnam Gallantry Cross with Palm Unit Citation while the applicant was a member of that organization.



DISCUSSION AND CONCLUSIONS:

1.  The evidence clearly shows the applicant was wounded as a result of hostile actions while in Vietnam.  While he may have disobeyed an order to remain at the fire base the LOD ultimately concluded the applicant’s injury was not the result of his own misconduct or negligence.  As such, he meets the basic eligibility requirements for award of the Purple Heart and his records should be corrected accordingly.

2.  The evidence confirms the applicant was awarded an Army Commendation Medal.  His 1971 DD Form 214 should be corrected accordingly.

3.  Records show the applicant was awarded the Vietnam Service Medal.  Additionally, records show the applicant participated in four campaigns while serving in the Republic of Vietnam.  Therefore, he is entitled to award of four bronze service stars to be affixed to the already-awarded Vietnam Service Medal.

4.  The applicant was assigned to a unit that was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  His records should be corrected accordingly.

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.  by awarding him the Purple Heart for wounds sustained on 25 February 1971; and
   
   b.  adding to his DD Form 214 the Army Commendation Medal, four bronze service stars to be worn on his already-awarded Vietnam Service Medal, and the Republic of Vietnam Gallantry Cross with Palm 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)                                         AR20100011866





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ABCMR Record of Proceedings (cont)                                         AR20100011866



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