IN THE CASE OF:	  

		BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100015181 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Purple Heart, the Bronze Star Medal, and the Army Commendation Medal.  

2.  The applicant states these awards are not listed on his DD Form 214.  

3.  The applicant provides the following documents in support of his application:

* DA Form 8-275-3 (Clinical Record Cover Sheet)
* DA Form 3349 (Medical Condition – Physical Profile)
* DA Form 137 (Installation Clearance Record)
* General orders and certificate for the Army Commendation Medal
* Certificate and citation for award of the Bronze Star Medal

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.  He was inducted into the Army of the United States on 26 March 1969.  His highest rank and pay grade attained was specialist four (SP4), E-4.  

3.  He was assigned to the Republic of Vietnam (RVN) on 8 December 1969 with Troop C, 3rd Squadron, 5th Cavalry Regiment, 9th Infantry Division.  

4.  Headquarters, 1st Infantry Brigade, 5th Infantry Division (Mechanized), General Orders Number 1433, dated 9 August 1970, show he was awarded the Army Commendation Medal for meritorious achievement from 8 December 1969 to 7 May 1970 in the RVN.  

5.  Headquarters, 1st Infantry Brigade, 5th Infantry Division (Mechanized), General Orders Number 1959, dated 28 October 1970, show he was awarded the Bronze Star Medal for meritorious service from December 1969 to December 1970 in the RVN.

6.  Item 38 (Record of Assignments) on his DA Form 20 (Enlisted Qualification Record) shows he was transferred to the 249th General Hospital on 23 January 1970 in a "Patient" status.  Item 38 also shows he received conduct and efficiency ratings of "excellent" for each of his duty assignments.  His record does not contain any derogatory information or a record of a commander's disqualification for award of the Army Good Conduct Medal.

7.  His DA Form 8-275-3, dated 23 January 1970, shows he was injured when an artillery piece close to him went off on 6 January 1970 in Dong Ha, RVN.  He was diagnosed as having perforation of the right tympanic membrane [ear drum] and hearing loss in his right ear.  There is no indication of enemy activity provided on this form.

8.  His service record does not contain any orders which show he was awarded the Purple Heart.  Item 40 (Wounds) on his DA Form 20 does not list any wounds as a result of hostile action.  His name is also not included on the Vietnam Casualty Roster.  

9.  He was given a temporary physical profile of 111311 in March 1970 for the perforation of his right tympanic membrane.  His assignment limitations were listed as no assignment involving habitual or frequent exposure to loud noises or firing of weapons and no field duty.  

10.  He departed the RVN on 11 November 1970.  He participated in the Vietnam Winter - Spring 1970, Sanctuary Counteroffensive, and Vietnam Counteroffensive Phase VII campaigns.  

11.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), 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 orders for the Purple Heart pertaining to the applicant.  

12.  He was released from active duty on 12 November 1970 in the rank of SP4.  He completed 1 year, 7 months, and 17 days of active military service with no time lost.  His DD Form 214 shows he was awarded the:

* National Defense Service Medal
* Vietnam Service Medal
* RVN Campaign Medal with Device (1960)
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-14)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)

13.  Department of the Army General Orders Number 8, dated 1974, announced   award of the RVN Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Military Assistance Command and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters, U.S. Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973.

14.  Army Regulation 600-8-22 (Military Awards) provides the Purple Heart is awarded for a wound 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 medical personnel, and the medical treatment must have been made a matter of official record.  This regulation states that when contemplating award of the Purple Heart, the key issue that commanders must take into consideration is the degree in which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not the sole justification for award.  It further states that injuries or wounds which clearly do not justify award of the Purple Heart include accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.  

15.  Army Regulation 600-8-22 authorizes award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal, to include the Vietnam Service Medal.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s service record does not contain orders which authorized him award of the Purple Heart and his name is not listed on the Vietnam Casualty Roster.

2.  His DA Form 8-275-3 indicates he was injured when an artillery piece close to him went off on 6 January 1970 in Dong Ha, RVN.  He was diagnosed as having perforation of the right tympanic membrane [ear drum] and hearing loss in right ear.  However, the evidence of record does not confirm his injury was caused by enemy action.  In the absence of any other corroborating evidence of record which shows he was wounded or injured as a result of hostile action, there is insufficient evidence upon which to base award of the Purple Heart in this case.

3.  General orders show he was awarded the Bronze Star Medal and the Army Commendation Medal.  Therefore, his DD Form 214 should be amended to show these awards.  

4.  It appears he met the regulatory requirements for the first award of the Army Good Conduct Medal for a qualifying period from 26 March 1969 through 12 November 1970.  His service record shows he received "excellent" conduct and efficiency ratings and he was advanced to SP4 during this period.

5.  The RVN Gallantry Cross with Palm Unit Citation was awarded to all units which served in Vietnam.  Therefore, his DD Form 214 should be amended to show the RVN Gallantry Cross with Palm Unit Citation.

6.  His DD Form 214 currently reflects the Vietnam Service Medal.  However, he participated in three campaigns during the Vietnam War.  Therefore, his DD Form 214 should be amended to reflect three bronze service stars for wear on his already-awarded Vietnam Service Medal.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  __X____  __X____  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 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 26 March 1969 through 12 November 1970;

	b.  amending his DD Form 214 by adding the Bronze Star Medal, Army Commendation Medal, Army Good Conduct Medal, and Republic of Viet Nam Gallantry Cross with Palm Unit Citation; and

	c.  deleting the Vietnam Service Medal from his DD Form 214 and replacing it with the Vietnam Service Medal with three bronze service stars.

2.  The Board further determined that 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 award of the Purple Heart.  



      _______ _  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)                                         AR20100015181





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ABCMR Record of Proceedings (cont)                                         AR20100015181



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