IN THE CASE OF:	  

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100012497 


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 along with 10 other men by a short artillery round.  However, he was informed at the time he was not entitled to the Purple Heart.

3.  The applicant provides 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 military records show he was inducted into the Army of the United States on 31 January 1969, was awarded the military occupational specialty of light weapons infantryman, served in Vietnam from 2 July 1969 to 25 February 1970, and was promoted to pay grade E-4.

3.  On 6 March 1970, a message was sent from the Commander, U.S. Army Vietnam, to the Department of the Army Casualty Division.  In that message it was stated that the applicant was "not seriously injured on 5 February 1970.  [Fragment] wound left upper arm.  Fracture in upper left arm but no nerve or artery involvement.  [Individual] was hit by [fragments] from short friendly mortar fire firing at [harassment and interdiction missions] which makes this injury a non-hostile one."

4.  On 11 September 1970, the applicant was honorably released from active duty.  His awards included the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Combat Infantryman Badge, and Sharpshooter Marksmanship Badge with M-14 Rifle Bar.

5.  The applicant's DA Form 20 (Enlisted Qualification Record), item 38 (Record of Assignments) shows his conduct and efficiency were rated as "excellent" or "unknown."  The applicant's records do not contain any derogatory information.

6.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for wounds 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 by a medical officer, and the medical treatment must have been made a matter of official record.

7.  Included as part of the Department of Defense Appropriations Act for Fiscal Year 1994 was an amendment to the rules governing award of the Purple Heart. 
While the original rules established that the Purple Heart would be awarded to individual's killed or wounded as a result of hostile action, the amendment enabled the Secretaries of each Department to award the Purple Heart to members of the Armed Forces who were killed or wounded in action by weapon fire while directly engaged in armed conflict other than as the result of an act of an enemy of the United States.  This ruling, in effect, granted the Service Secretaries the authority to award the Purple Heart to individuals directly engaged in armed conflict who were killed or wounded as a result of "friendly fire."  This provision applies to members of the Armed Forces who are killed or wounded on or after 7 December 1941.

8.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the applicant's unit was awarded the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 1 October 1966 to 31 October 1969 by Department of the Army General Orders Number 53, dated 1970.  This pamphlet also shows the pertinent identified campaigns for which a bronze service star is authorized for wear on the Vietnam Service Medal.  The pertinent campaigns are the Vietnam Summer-Fall 1969 (9 June 1969 through 31 October 1969) and Vietnam Winter-Spring 1970 (1 November 1969 through 30 April 1970).

9.  Department of the Army General Orders Number 8, dated 1974, awarded all personnel assigned to U.S. Army Vietnam from 8 February 1962 through 28 March 1973 the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

10.  Army Regulation 600-8-22 also provides that 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.  A record of punishment is not automatically disqualifying.  However, at that time, a single efficiency rating of less than "excellent" was disqualifying.  Although there is no automatic entitlement to the Army Good Conduct Medal, disqualification must be justified.  Current practice requires that the commander provide written notice of nonfavorable consideration and permits the individual to respond.  At that time, nonfavorable consideration was normally noted on the DA Form 20.

DISCUSSION AND CONCLUSIONS:

1.  The laws and regulations in effect while the applicant was on active duty did not provide for award of the Purple Heart for wounds incurred as a result of "friendly fire."  However, a subsequent law that provided for award of the Purple Heart for wounds incurred as a result of "friendly fire" was made retroactive to 1941.  As such, the applicant is now entitled to the Purple Heart.

2.  Based on the applicant's service in Vietnam, he is also entitled to the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and two bronze service stars to be affixed to his already-awarded Vietnam Service Medal.

3.  The applicant's conduct and efficiency were rated as "excellent" or "unknown" and the applicant's records do not contain any derogatory information.  As such, it would appear the applicant should have been awarded the Army Good Conduct Medal.


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 he incurred on 5 February 1970;

	b.  awarding him the Army Good Conduct Medal for the period 31 January 1969 to 11 September 1970; and

	c.  adding to his DD Form 214 the Purple Heart, Army Good Conduct Medal, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and two bronze service stars to be affixed to his already-awarded Vietnam Service Medal.



      _______ _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)                                         AR20100012497



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ABCMR Record of Proceedings (cont)                                         AR20100012497



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