IN THE CASE OF:	  

		BOARD DATE:	  28 October 2010

		DOCKET NUMBER:  AR20100013480 


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 that while driving in a convoy on 8 July 1968, they came under attack and he received phosphorus burns to his left arm and left hand.

3.  The applicant provides a DD Form 1380 (U.S. Field Medical Card).

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 inducted into the Army of the United States on
16 September 1966.  He completed initial entry training and he was awarded military occupational specialty 36K (Field Wireman).
3.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 25 August 1967 to 9 August 1968 and he was assigned to B Battery, 5th Battalion, 16th Artillery, 4th Infantry Division while in the RVN.  It further shows he received "excellent" conduct and efficiency ratings throughout his active service.  Item 40 (Wounds) is blank and the Purple Heart is not included in the list of awards in item 41 (Awards and Decorations).

4.  His Official Military Personnel File (OMPF) is void of orders or any other documents that indicate he was ever recommended for or awarded the Purple Heart while serving in the RVN.  It is also void of any medical treatment records that show he was treated for a combat-related wound or injury while serving in the RVN.  His name is not listed on the RVN casualty listing.

5.  His OMPF is also void of any derogatory information or a unit commander disqualification that would have precluded him from receiving the Army Good Conduct Medal.

6.  On 12 August 1968, he was honorably released from active duty in the rank/grade of specialist four (SP4)/E-4 after completing 1 year, 10 months, and 27 days of active service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the National Defense Service Medal, Vietnam Service Medal, two Overseas Service Bars, and the Expert Marksmanship Qualification Badge with Rifle Bar (M-14).

7.  The applicant provided a DD Form 1380 that indicates he was treated for white phosphorus burns to his left arm and left hand on 8 July 1968.  This form also indicates the injury was as a result of enemy action.  In what appears to be the back side of this form, the following statement is entered in item 32 (Remarks), "I want SP4 S----------- to be presented the Purple Heart for injuries received while traveling in a convoy south of …."  The remainder of the statement is illegible.

8.  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.  This regulation also states that when contemplating an award of 

the Purple Heart, the key issue commanders must take into consideration is the degree to which the enemy caused the injury.

9.  Army Regulation 672-5-1 (Awards), in effect at the time, 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; for first award only, 1 year served entirely during the period 7 December 1941 to 2 March 1946; 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.  The enlisted person must have had all "excellent" conduct and efficiency ratings.  There must have been no convictions by a court-martial.

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 four campaigns:

* Vietnam Counteroffensive Phase III (1 June 1967 - 29 January 1968)
* Tet Counteroffensive (30 January - 1 April 1968)
* Vietnam Counteroffensive Phase IV (2 April - 30 June 1968)
* Vietnam Counteroffensive Phase V (1 July - 1 November 1968)

11.  Army Regulation 600-8-22 states the Republic of Vietnam Campaign Medal with Device (1960) was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973.  Qualifying service included assignment in Vietnam for 6 months or more.

12.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in the RVN.  This pamphlet shows during the period the applicant was assigned the unit (5th Battalion, 16th Artillery) was cited for the following unit awards:

* Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 1 August 1965 - 16 April 1971 by Department of the Army General Orders (DAGO) Number 54, dated 1974
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 1 October 1966 - 31 October 1969 by DAGO Number 53, dated 1970
* Presidential Unit Citation for the period 29 October - 30 November 1967 by DAGO Number 38, dated 1971
* Valorous Unit Award for the period 4 - 12 February 1968 by DAGO Number Number 43, dated 1970

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the Purple Heart because of injuries he received when under attack while in a convoy on 8 July 1968 has been carefully reviewed and found to have merit.

2.  The DD Form 1380 indicates he was treated for white phosphorus burns to his left arm and left hand on 8 July 1968.  This form also indicates the injuries were as a result of enemy action and it appears he was recommended for the Purple Heart as a result of his injuries.  Therefore, there is sufficient evidence in which to base awarding him the Purple Heart and adding this award to his DD Form 214.

3.  The evidence of record confirms he received "excellent" conduct and efficiency ratings through his service and his OMPF is void of any derogatory information or a unit commander's disqualification that would have precluded him from receiving the Army Good Conduct Medal.  Therefore, it would be appropriate to award him the first award of the Army Good Conduct Medal for the period 16 September 1966 through 12 August 1968 and correcting his DD Form 214 to show this award.

4.  He was awarded the Vietnam Service Medal.  Additionally, he participated in four campaigns while in the RVN.  Therefore, he is entitled to four bronze service stars for wear on his already-awarded Vietnam Service Medal and correction of his DD Form 214 to show the bronze service stars.

5.  He served a qualifying period of service in the RVN for entitlement to the Republic of Vietnam Campaign Medal with Device (1960).  Therefore, his DD Form 214 should be corrected to show this medal.

6.  Based on his service with 5th Battalion, 16th Artillery while in the RVN, he is also entitled to correction of his DD Form 214 to show the Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Presidential Unit Citation, and the Valorous Unit Award.

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 injuries sustained as a result of hostile action on 8 July 1968;

	c.  awarding him the first award of Army Good Conduct Medal for his period of honorable active service from 16 September 1966 through 12 August 1968; and

	d.  adding to item 24 of his DD Form 214 the Purple Heart, Army Good Conduct Medal (first award), Vietnam Service Medal with four bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, Presidential Unit Citation, and the Valorous Unit Award.




      _______ _ 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)                                         AR20100013480



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100013480



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1