IN THE CASE OF:	  

		BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100015362 


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, through his Member of Congress, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show a third award of the Purple Heart.

2.  The applicant states he was wounded on three separate occasions: 14 March, 23 May, and 15 May 1971.  He received two awards of the Purple Heart, for the 14 March and 23 May 1971 injuries, but not for the 15 May 1971 injury.  

3.  The applicant provides:

* DD Form 214
* DA Form 20 (Enlisted Qualification Record)
* Two Purple Heart certificates for 14 March and 23 May 1971 injuries
* Department of Veterans Affairs rating decision
* Report of Medical History
* Report of Medical Examination
* Naval Hospital medical report
* Medical Records, Consult Sheet, Laboratory Reports, Audiograms, Optometry, and Immunization Record 
* Various Chronological Records of Medical Care
* DD Form 1380 (U.S. Field Medical Card)
* Separation and reassignment orders



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 records show he enlisted in the Regular Army on 24 July 1969 and held military occupational specialty 67N (UH-1 Helicopter Repairman).  He served in Vietnam from 5 February 1970 to 27 May 1971.  He was assigned to the:

* 62nd Aviation Company, from 26 February 1970 to 3 January 1971
* 123rd Aviation Battalion, from 4 January 1971 to 9 March 1971
* D Troop, 1st Squadron, 1st Cavalry, from 10 March 1971 to 26 May 1971

3.  He departed Vietnam on 27 May 1971 in a patient status to Okinawa, and again on 11 June 1971, also in a patient status, to the Naval Hospital, Great Lakes, IL.  He was honorably released from active duty on 28 January 1972 in the rank/grade of specialist five (SP5)/E-5 and he was transferred to the U.S. Army Reserve Control Group to complete his remaining Reserve obligation.  

4.  Item 24 (Decoration, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the National Defense Service Medal, Vietnam Service Medal with 3 bronze service stars, Republic of Vietnam Campaign Medal, Army Commendation Medal, Air Medal, Bronze Star Medal, Marksman Marksmanship Qualification Badge with Rifle Bar, and the Purple Heart (1st Oak Leaf Cluster).

5.  Item 40 (Wounds) of his DA Form 20 shows the following combat wounds/injuries:

* Fragment wound, left elbow and neck, 15 March 1971
* Gunshot wound, right hip, 23 May 1971
* Fragment wound, right leg, 15 May 1971
6.  His name is shown on the Vietnam casualty roster as having sustained category 1 (battle wounded), codes 25 or 26 (hostile action) wounds on 14 March 1971, 20 May 1971, and 23 May 1971.

7.  Headquarters, 23rd Infantry Division, General Orders Number 3712, dated 31 March 1971, awarded him the Purple Heart for wounds received in action on 14 March 1971.

8.  Headquarters, 91st Evacuation Hospital, General Orders Number 91, dated 24 May 1971, awarded him the Purple Heart (2nd Oak Leaf Cluster), for wounds received in action on 23 May 1971. 

9.  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.

10.  A review of the applicant's records indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

11.  Headquarters, 1st Aviation Brigade, General Orders Number 3496, dated 11 May 1970, awarded him the Air Medal for meritorious achievement from 2 to 25 March 1970, and General Orders Number 2786, dated 1 April 1971, awarded him the Air Medal (2nd through 10th Award) for meritorious achievement from 29 March to 27 November 1970.

12.  Item 38 (Record of Assignments) of his DA Form 20 shows he received "excellent" conduct and efficiency ratings throughout his military service.  Additionally, his record is void of any derogatory information that would have disqualified him from receiving his first award of the Army Good Conduct Medal.

13.  Army Regulation 600-8-22 (Military Awards) states the Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity.  Although there is no automatic entitlement to the Army Good Conduct Medal, disqualification must be justified.  Any one of the following periods of continuous enlisted active Federal military service qualifies for award:

* Each 3 years 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
* For first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year
* 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
* For first award only, for those individuals who died before completing 1 year of active Federal service if the death occurred in the line of duty.  

14.  Department of the Army General Orders Number 42, dated 1972, awarded both the 123rd Aviation Battalion and D Troop, 1st Squadron, 1st Cavalry, the Republic of Vietnam Gallantry Cross with Palm Unit Citation for service from 8 February to 31 March 1971.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was clearly wounded as a result of enemy action in Vietnam on 15 March, 15 May, and 23 May 1971.  He was issued official orders for his 15 March and 23 May 1971 injuries, the latter awarding him the Purple Heart (2nd Oak Leaf Cluster), but no orders for his 15 May 1971 injury are available.  Therefore, he is entitled to the issuance of orders and a certificate awarding him the Purple Heart (1st Oak Leaf Cluster) for his 15 May 1971 injury.

2. Having been awarded three awards of the Purple Heart, he is also entitled to  correction of his DD Form 214 to show three awards of the Purple Heart, or Purple Heart (2nd Oak Leaf Cluster). 

3.  General orders awarded him the Air Medal (2nd through 10th Award) which is not shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show this sward. 

4.  General orders awarded his unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation which is not shown on his records; therefore, he is entitled to correction of his records to show this unit award.

5.  The evidence of record confirms he served honorably during the period 24 July 1969 through 28 January 1972.  He completed a combat tour in Vietnam, received "excellent" conduct and efficiency ratings throughout his military service, received multiple combat awards, and attained the rank/grade of SP5/E-5.  His record is void of any derogatory information on file that would have disqualified him from award of the Army Good Conduct Medal.  Therefore, it would be appropriate to award him the first award of the Army Good Conduct Medal based on completion of a qualifying period of Federal military service and correction of his records to show this 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 the DD Form 214 of the individual concerned be corrected by:

	a.  awarding the applicant the Purple Heart (1st Oak Leaf Cluster) for wounds received in action on 15 May 1971 in the Republic of Vietnam; 

	b.  deleting the Purple Heart and the Air Medal from his DD Form 214;

	c.  awarding him the Army Good Conduct Medal (1st Award) for exemplary behavior, efficiency, and fidelity during the period 24 July 1969 through 28 January 1972; and 

	d.  adding to his DD Form 214 the Purple Heart (2nd Oak Leaf Cluster), Air Medal (1st through 10th Award), Army Good Conduct Medal, and Republic of Vietnam Gallantry Cross with Palm Unit Citation.



      _______ _   _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)                                         AR20100015362



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ABCMR Record of Proceedings (cont)                                         AR20100015362



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