IN THE CASE OF:	  

		BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100012096 


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 that he be awarded the Purple Heart.

2.  The applicant states that he lost his right arm and left leg on a fire base in Vietnam in 1969 and was retired with 100% disability; however, he was never awarded the Purple Heart.

3.  The applicant provides:

* A copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Copies of clinical records relating to his treatment.

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 born on 12 June 1948 and he was inducted into the Army of the United States in Spokane, Washington on 7 October 1968.  He completed his advanced individual training as a cannoneer at Fort Sill, Oklahoma before being transferred to Vietnam on 13 March 1969.

3.  He was assigned to Battery B, 1st Battalion, 92d Artillery Regiment and was advanced to the pay grade of E-3 on 21 April 1969.

4.  On 10 May 1969, at 2000 hours, the applicant was wounded in action at an artillery firing position when a 155mm howitzer exploded at the breech while being fired at a hostile force and injured the applicant.  He was initially medically evacuated to the 71st Evacuation Hospital in Pleiku, Vietnam and his left leg (above the knee) and his right arm (above the elbow) were amputated.  He was subsequently evacuated to the 249th General Hospital in Japan and then to Madigan General Hospital in Tacoma, Washington.

5.  On 2 October 1969, he was retired by reason of permanent disability (100%).  He had served 11 months and 26 days of total active service and his DD Form 214 shows he was awarded the Vietnam Service Medal (VSM) and the National Defense Service Medal.

6.  A review of the applicant’s records and a search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System, a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era, also failed to produce an order which awarded the applicant the Purple Heart.  However, his name is contained on the Vietnam Casualty Listing.

7.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he received all "excellent" conduct and efficiency ratings throughout his service.  His records contain no evidence of any disciplinary actions.

8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound/injury sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound/injury was a result of hostile action, that the wound/injury must have required treatment by a medical officer, and that the medical treatment was made a matter of official record.  Individuals wounded or killed as a result of “friendly fire” in the “heat of battle” will be awarded the Purple Heart as long as the “friendly” projectile or 


agent was released with the full intent of inflicting damage on or destroying enemy troops or equipment.

9.  That regulation also provides that the Republic of Vietnam Campaign Medal (RVNCM) with Device (1960) is awarded for service in Vietnam for a period of less than 6 months when an individual has been wounded by hostile forces, captured, or killed in the line of duty.

10.  Army Regulation 672-5-1, in effect at the time, provided policy and criteria concerning individual military decorations.  It 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 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.  It also stated the Army Good Conduct Medal was awarded, for first award only, upon termination of service, on or after 27 June 1950, of less than 1 year when final separation was by reason of physical disability incurred in line of duty.  At the time, a Soldier’s conduct and efficiency ratings must have been rated as “excellent” for the entire period of qualifying service.

11.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register-Vietnam Era) was published to assist commanders and personnel officers in determining or establishing the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  Table 1 (Army Units in Numerical Order) of the pamphlet indicates that the applicant's unit was awarded the Republic of Vietnam Gallantry Cross with Palm (RVNGC with Palm) Unit Citation and the Valorous Unit Citation (VUA) for service in Vietnam during the applicant was assigned to the unit.  Additionally, the applicant participated in one campaign while assigned to Vietnam and he is authorized one bronze service star for wear on his already awarded VSM.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows the applicant was wounded as a result of enemy action (friendly fire) in Vietnam while serving in the rank of private first class (PFC) on 10 May 1969 and that medical treatment was made a matter of record.  However, for reasons not explained in the available records he was never awarded the Purple Heart.



2.  Accordingly, it would be in the interest of justice to award him the Purple Heart for wounds received as a result of enemy action in Vietnam on 10 May 1969 while serving in the rank of PFC.

3.  Additionally, the evidence of record also shows the applicant is entitled to awards of the RVNCM with Device (1960), the RVNGC with Palm Unit Citation, the VUA and one bronze service star for wear on his already awarded VSM.

4.  Further, it appears the applicant met the eligibility criteria for award of the Army Good Conduct Medal.  He received all "excellent" conduct and efficiency ratings, there is no evidence of any disciplinary actions taken against him, and, although he served less than 1 year of service, he was separated by reason of physical disability incurred in line of duty.

BOARD VOTE:

___X___  ____X___  __X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.   awarding him the Purple Heart for wounds received as a result of enemy action in Vietnam on 10 May 1969 while serving in the rank of PFC;

     b.  awarding him the Army Good Conduct Medal (1st Award) for the period      7 October 1968 through 2 October 1969; 

     c.  and amending his DD Form 214 to add the Purple Heart, Army Good Conduct Medal, the RVNCM with Device (1960), the RVNGC with Palm Unit Citation, and the VUA and to show one bronze service star for wear on his already-awarded VSM.

2.  The Board wants the applicant and all others to know that the sacrifices he made in service to the United States during the Vietnam War are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.




      _________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)                                         AR20100012096



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ABCMR Record of Proceedings (cont)                                         AR20100012096



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