IN THE CASE OF:	  

		BOARD DATE:	  10 November 2010

		DOCKET NUMBER:  AR20100014312 


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 his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show the award of two additional Purple Hearts and his highest grade held as sergeant (SGT)/E-5.

2.  The applicant states he suffered three injuries during his tour of duty in the Republic of Vietnam.  He was burned on both arms in a firefight in January 1968, blasted by a road block land mine explosion in March 1968, and he was pinned under a 3/4 ton truck when the driver lost control of the vehicle and slid off the road after striking a land mine.  He received one Purple Heart, but not the second or third.  Further, he contends he was advanced to specialist five (SP5)/E-5 at Fort Dix, NJ, and his commander placed him in charge of troops as an SGT/E-5.  He currently has a 70-percent disability rating due to post-traumatic stress disorder and this issue bothers him.

3.  The applicant provides no additional documentation.

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.  His military records show he was inducted into the Army of the United States on 6 September 1967.  He was trained in and was awarded military occupational specialty 76Y (Supply Clerk).  He served in the Republic of Vietnam from on or about 22 February 1968 to on or about 21 October 1968.

3.  His DA Form 20 (Enlisted Qualification Record) shows the following:

	a.  Item 33 (Appointment and Reductions) shows he was promoted to the permanent rank of SP5/E-5 effective 20 May 1969; however, Headquarters, 5th Combat Support Training Brigade, Special Orders Number 85, dated 20 May 1969, show this as a "temporary" promotion.

	b.  Item 38 (Record of Assignments) shows he was assigned to the following units in the Republic of Vietnam:

* Company B, 5th Battalion 9th Infantry Division, from 3 March 1968 to 30 May 1968
* Headquarters and Headquarters Company, 5th Battalion (Mechanized), 60th Infantry, 9th Infantry Division, from 31 May 1968 to 3 July 1968
* 39th Field Hospital on 4 July 1968 and subsequently evacuated to the 249th General Hospital, Japan, on an unknown date

	c.  Item 40 (Wounds) shows he suffered a burn and laceration on his right arm on 2 April 1968.

4.  Headquarters, 9th Infantry Division, General Orders Number 1877, dated 30 March 1968, awarded him the Purple Heart for wounds he received in connection with military operations against a hostile force on 12 March 1968.

5.  He applied for a compassionate reassignment on 22 August 1968 while assigned to the 249th General Hospital.  As his reason he stated, "I am the only child in my family and have been twice wounded in action while in Vietnam on March 11 and April 2, 1968.  In addition, I have been in a truck accident June 28, 1968."

6.  On 4 September 1968, his immediate commander recommended approval.  He stated, "In view of two previous wounds as result of hostile action and the current hospitalization for injury, recommend favorable consideration due to the emotional strain placed on the parents of an only child."

7.  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 additional orders awarding him subsequent Purple Hearts.

8.  His name appears on the Vietnam casualty roster for two separate incidents.  The dates of casualty are listed as 11 March 1968 and 2 April 1968.

9.  A review of his record shows no derogatory information that would disqualify him for the first award of the Army Good Conduct Medal.  Furthermore, item 38 of his DA Form 20 shows he received an "excellent" conduct and efficiency ratings throughout his military service.

10.  He was released from active duty on 5 September 1969, having completed 2 years of active service.  The DD Form 214 he was issued at the time of his separation shows his rank/grade as SP5 (T) [temporary]/E-5.

11.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded the National Defense Service Medal, Vietnam Service Medal, Purple Heart, Combat Infantryman Badge, Vietnam Campaign Medal, and Expert Marksmanship Qualification Badge with Rifle Bar (M-14).

12.  A review of his records shows he is authorized additional awards which are not shown on his DD Form 214.

13.  Army Regulation 672-5-1 (Military Awards), 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.  At the time, a Soldier's conduct and efficiency ratings must have been rated as "excellent" for the entire period of qualifying service.  There must have been no convictions by a court-martial.

14.  Appendix B of Army Regulation 600-8-22 (Military Awards) shows the campaigns for the Republic of Vietnam.  During his tour of duty in Vietnam participation credit was awarded for the Tet Counteroffensive (30 January 1968-1 April 1968), the Vietnam Counteroffensive Phase IV (2 April 1968-30 June 1968), and the Vietnam Counteroffensive Phase V (1 July 1968-1 November 1968).  This same regulation states a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

15.  Department of the Army General Orders Number 43, dated 1970, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Valorous Unit Award to the 5th Battalion, 60th Infantry, during the period 1 December 1966-30 June 1968.

16.  Department of the Army General Orders Number 59, dated 1969, announced award of the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation to the 5th Battalion, 60th Infantry, during the period 19 December 1966-28 June 1969.

17.  Army Regulation 600-8-22 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.

18.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel.  Chapter 7 contained Army-wide promotion policy and procedures.  It stated commanders may appoint qualified Soldiers as acting SGT's/E-5 to serve in vacant positions in their units at their present or higher grade and that acting noncommissioned officers are not entitled to pay and allowances for such higher grades.  In addition, it stated the promotion of enlisted personnel was announced in routine orders.

19.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active service at the time of release from active duty, retirement, or discharge.  It states that the grade in which serving at the time of separation would be entered in item 5a (Grade, Rate, or Rank).



DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his DD Form 214 be corrected to show the award of two additional Purple Hearts and his highest grade held as SGT/E-5.

2.  The evidence of record confirms the following:

	a.  He was injured on two separate occasions during his tour in the Republic of Vietnam as a result of hostile fire.  This is verified by the Vietnam casualty roster, self-reported by the applicant in his request for compassionate reassignment, and by his immediate commander's endorsement of the same request.  However, his injuries sustained in a truck accident do not qualify for award of the Purple Heart.  Therefore, he is only entitled to have his records corrected to show a second award of the Purple Heart.

	b.  He served honorably from 6 September 1967 to 5 September 1969.  He completed a combat tour in Vietnam, attained the temporary rank/grade of SP5/E-5, and received "excellent" efficiency and conduct ratings throughout his military service.  Lacking any derogatory information on file that would have disqualified him from receiving the first award of the Army Good Conduct Medal, it would be appropriate to correct his records to show this award.

	c.  He was awarded the Vietnam Service Medal.  Additionally, records show he participated in three campaigns while serving in the Republic of Vietnam.  Therefore, he is entitled to award of three bronze service stars to be affixed to his Vietnam Service Medal.

	d.  General orders awarded his unit the Valorous Unit Award, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation which are not shown on his records.  Therefore, he is entitled to correction of his records to show these unit awards.

	e.  At the time of his separation on 5 September 1969 he held the temporary rank/grade of SP5/E-5.  His record is void of any documentation indicating he was promoted to SGT/E-5 and/or held such rank at the time of his release from active duty.  Therefore, his request to show his rank as SGT should be denied.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial 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 Army Good Conduct Medal for the period 6 September 1967 to 5 September 1969 and the Purple Heart with 1st Oak Leaf Cluster for wounds sustained in action on 2 April 1968;

	b.  deleting the Purple Heart from item 24 of his DD Form 214; and

	c.  adding the Purple Heart with 1st Oak Leaf Cluster, Army Good Conduct Medal, Valorous Unit Award, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and three bronze service stars to be affixed to his previously-awarded Vietnam Service Medal to his DD Form 214.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the award of a third Purple Heart and correction of his pay grade and rank to show SGT/E-5.



      _____________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)                                         AR20100014312



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ABCMR Record of Proceedings (cont)                                         AR20100014312



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