BOARD DATE:	  6 January 2011 

		DOCKET NUMBER:  AR20100017314 


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.  He states he was stationed in Vietnam with the Company E, 1st Battalion, 18th Infantry, 1st Infantry Division.  He was wounded on 29 January 1969 along with two other Soldiers in his unit.  He later learned one of the Soldiers died enroute to the hospital.  In the hospital, he was informed award of the Purple Heart would not be made to them due to friendly fire.  One of their own men tossed a grenade injuring him and the two other Soldiers.  The only thing he remembers from that night is someone yelling, "Gooks" then gunfire followed.  He was hit in the right hip and leg by bullet fire.  Next, he heard, "oh no grenade" as something hit him in the back and dropped behind him.  He dove forward from the explosion.  Fragments hit him in the back, lungs, buttocks, left foot, and paralyzed his left arm.  Had it not been for one of the other Soldiers yelling out, "oh no grenade" he firmly believes he would not be alive today.  That Soldier saved his live and should be awarded some type of medal or recognition.

3.  He further states he feels it is unjust, not only for the three of them, but for all those who were not awarded a Purple Heart in combat situations due to someone else's mistake.  It's not like they asked or wanted it to be that way.  They were all Soldiers trained and ready to give their lives for their country.  He has heard and read that others were awarded a Purple Heart due to friendly fire in other campaigns.  If this is true, he whole heartedly agrees.



4.  He provides:

* September 1970 Medical Board (MEB) Proceedings
* October 1970 orders
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* November 1971 MEB Proceedings
* November 1971 Physical Evaluation Board (PEB) Proceedings 
* 1972 Separation and Removal from the Temporary Disability Retired List (TDRL)
* September 1972 Standard Form 502 (Clinical Record - Narrative Summary)

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 in pay grade E-1 on 18 July 1967.  He completed training and was awarded military occupational specialty 11B, Light Weapons Infantryman.  

3.  He served in Vietnam from 15 June 1968 through 15 February 1969 during two campaigns.  He was assigned to Headquarters and Headquarters Company, 1st Battalion, 18th Infantry, 1st Infantry Division from 23 June through 26 September 1968 and Company E, 1st Battalion, 18th Infantry, 1st Infantry Division from 27 September 1968 through 8 February 1969.

4.  His records contain a Western Union telegram, dated 30 January 1969, advising his parents that he had been wounded in action in Vietnam on 29 January 1969 as a result of hostile action.  He received fragment wounds to the chest, abdomen and left arm while on combat operations when mistaken for a hostile force and fired upon by friendly forces.  

5.  On 21 September 1970, an MEB convened and found him unfit for further medical service in accordance with current medical fitness standards and referred him to a PEB.  The attached narrative summary stated he was injured on 29 January 1969 when he was hit by grenade fragments and in addition was shot through the right side of the back.  In addition, he had multiple fragment wounds to the left arm and axilla with complete section of the radial and ulnar nerves.  He was also noted to have an injury to the chest and had a chest tube inserted on the left side due to hemopneumothorax.  His initial treatment was undertaken at the 24th Evacuation Hospital.  He was subsequently transferred to the U.S. Army Hospital in Japan, then evacuated to the U.S., and arrived at the Valley Forge General Hospital on 17 February 1969.  The summary does not specify his injuries were a result of friendly fire.

6.  On 28 September 1970, an informal PEB found him unfit because of physical disability to perform the duties of his office, rank, and grade.  The PEB recommended placement on the TDRL with a combined rating of 70 percent.  

7.  He was honorably retired on 9 December 1970 in the rank of sergeant, E-5, for temporary disability and placed on the TDRL.  

8.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 lists the following awards: 

* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Combat Infantryman Badge
* Republic of Vietnam Gallantry Cross with Palm Unit Citation

9.  His DA Form 20 (Enlisted Qualification Record), Item 38 (Record of Assignment), shows he was in a patient status from 9 February through 17 February 1969.  Item 38 also shows he had all "excellent" conduct and efficiency ratings during his period of service.

10.  Item 40 (Wounds) of his DA Form 20 contains the entry:  Fragment wound to abdomen and chest on 29 January 1969.  Item 41 (Awards and Decorations) of his DA Form 20 does not list the Purple Heart.  Item 41 also shows his entitlement to award of the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

11.  There are no orders in his military personnel records authorizing award of the Purple Heart.  
12.  He was removed from the TDRL and permanently retired on 31 January 1972.

13.  The Vietnam casualty roster shows he was wounded on 29 January 1969 and the casualty status codes were "23."  This code indicates the status "hostile, wounded in action, not serious, hospitalized."  The cause codes were "H and L."  These codes indicate mines and other weapons.

14.  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 orders were published authorizing award of the Purple Heart to him.

15.  Army Regulation 600-8-22 (Military Awards) provides for award of the Purple Heart to individuals wounded or killed as a result of “friendly fire” in the “heat of battle” as long as the “friendly” projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.

16.  Army Regulation 600-8-22 also states the Purple Heart was awarded for an injury or 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 military personnel, and the medical treatment must have been made a matter of official record.

17.  Army Regulation 600-8-22 also specifies 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.  Although there is no automatic entitlement to the Army Good Conduct Medal, disqualification must be justified.

18.  Army Regulation 600-8-22 authorizes a bronze service star based on qualifying service for each campaign listed in appendix B and states that authorized bronze service stars will be worn on the appropriate campaign or service medal, including the Vietnam Service Medal.

19.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that at the time of his assignment to Headquarters and Headquarters Company, 1st Infantry Division, it was cited for award of the Meritorious Unit Commendation for service from 1 January to 31 December 1968, by Department of the Army General Order Number 7, dated 1970; and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for service from October 1965 to 7 April 1970, by Department of the Army General Order Number 53, dated 1970.

DISCUSSION AND CONCLUSIONS:

1.  There are no orders that show the applicant was awarded the Purple Heart.  However, the evidence shows the following:

	a.  While serving in Vietnam he was hit by grenade fragments and shot through the right side of the back on 29 January 1969.  He underwent initial treatment in Vietnam, was subsequently evacuated to the U.S. and hospitalized, and the treatment made a matter of official record.  His medical conditions and physical defects where considered by a MEB and PEB.  The medical narrative summary does not identify his injuries as being the result of friendly fire.  He was found unfit for further duty and retired for temporary disability in December 1970.  He was removed from the TDRL and permanently retired on 31 January 1972.

	b.  On the one hand, he states that he was told in the hospital at the time that "the Purple Heart would not be awarded to us due to friendly fire; one of our men tossed a grenade injuring us."  On the other hand, the Western Union Telegram and the Vietnam casualty roster indicate hostile action.  Although it is unclear who threw the grenade or who shot him, he sustained multiple fragment wounds.

	c.  If the grenade explosion or the shooting were done by enemy forces, his injury would have qualified him for award of the Purple Heart.  Furthermore, if the grenade explosion and the shooting were done by friendly forces, there is a clear indication that these actions occurred in the heat of battle.

	d.  It appears that regardless what caused his injury, the applicant has met the criteria for award of the Purple Heart.  Therefore, it should be awarded to him and his records should be corrected to show it. 

2.  The evidence is further confirmed with the listing of his name on the Vietnam casualty roster.  Despite the lack of general orders awarding him the Purple Heart, the evidence shows he is qualified for award of the Purple Heart.  Therefore, it is concluded he is entitled to award of the Purple Heart and its addition to his DD Form 214.

3.  The evidence of record also shows he had "excellent" conduct and efficiency ratings during his service in the Army, he attained the rank and pay grade of sergeant/E-5, served in Vietnam, and was wounded in action.  Therefore, he is entitled to award of the Army Good Conduct Medal (1st Award) for the period 18 July 1967 through 9 December 1970 and to have it added to his DD Form 214.

4.  The evidence of records confirms he participated in two campaigns while serving in Vietnam.  Therefore, he is also entitled to award of two bronze service stars to be affixed to his already-awarded Vietnam Service Medal.

5.  The evidence of record further confirms he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar which is not shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show this badge.

6.  General orders awarded his unit the Meritorious Unit Commendation and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation which are not shown on his records; therefore, it would also be appropriate to correct his records to show these unit awards.

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.  awarding him the Purple Heart for wounds received in action on 29 January 1969 in the Republic of Vietnam; 

	b.  awarding him the Army Good Conduct Medal (1st Award) for his honorable period of service from 18 July 1967 through 9 December 1970;

	c.  adding to Item 24 of his DD Form 214 the Purple Heart, Army Good Conduct Medal (1st Award), two bronze service stars to be affixed to his already-awarded Vietnam Service Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, Meritorious Unit Commendation, and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation; and 

	d.  providing him a corrected DD Form 214 that includes these changes.



      _______ _   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)                                         AR20100017314





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ABCMR Record of Proceedings (cont)                                         AR20100017314



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