IN THE CASE OF:	  

		BOARD DATE:	  11 January 2011

		DOCKET NUMBER:  AR20100017839 


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 Bronze Star Medal for action on 10 December 1967
* The entry “Wounds:  Shrapnel Imbedded in Knee” instead of “Wounds: Shrapnel scratched to body 30 May 1967 Vietnam” in item 30 (Remarks) 

2.  He states:

* "I was requested to be evacuated and I insisted at the time that the more severely wounded be sent first"
* He remained with his unit and was given crutches
* The Fire Direction Center would have been short of people if he had left 

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

* Radiology Reports
* DD Form 214
* Promotion Orders to specialist five
* Orders, citations, and award certificates for the Bronze Star Medal and the Army Commendation Medal
* Orders and award certificate for the Purple Heart 



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 9 August 1966.  The highest rank/grade he attained was specialist five (SP5).  

3.  His DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 7 February 1967 to 6 February 1968 with Battery C, 8th Battalion, 6th Artillery Regiment, 1st Infantry Division.

4.  Item 40 (Wounds) on his DA Form 20 shows the entry “shrap scratches to body” on 30 May 1967.

5.  General Orders Number 9490, dated 31 December 1967, show he was awarded the Bronze Star Medal for meritorious achievement on 10 December 1967.  

6.  General Orders Number 326, dated 15 January 1968, show he was awarded the Army Commendation Medal for meritorious service from February 1967 to January 1968.  

7.  His DA Form 20 shows he received "excellent" conduct and efficiency ratings throughout his period of service.  His service record contains one nonjudicial punishment under Article 15, Uniform Code of Military Justice, dated 20 June 1967, for failing to obey a lawful order.  His service record does not contain a commander's disqualification for the first award of the Army Good Conduct Medal.

8.  He was released from active duty on 26 July 1968 in the rank of SP5.  He completed 1 year, 11 months, and 18 days of active military service with no time lost.  

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

* National Defense Service Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-14)
* Vietnam Service Medal
* RVN Campaign Medal
* Two Overseas Service Bars
* Purple Heart

10.  Item 30 of his DD Form 214 shows the entry “Wounds: Shrapnel scratched to body 30 May 67 Vietnam.”

11.  His service record does not contain medical documentation which shows shrapnel was imbedded in his knee on 30 May 1967.

12.  His Radiology Reports, printed on 17 May 2010, show the following data under Clinical History and Impression:

* Previous right knee replacement last November 1999 in Colorado
* Increased pain in right knee all over, worse at night time
* Status post total right knee replacement in good position and alignment
* Narrowing of the patella femoral joint space
* Patellar spurring
* 5 millimeter shrapnel fragment in the soft tissue of the antemedial aspect of the right distal femur (the thigh bone; the end down by the knee)

13.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This pamphlet shows the unit to which the applicant was assigned,
8th Battalion, 6th Artillery, was cited for the following unit awards:

* The RVN Gallantry Cross with Palm Unit Citation for the period 12 July 1965 to 16 October 1968 by Department of the Army General Orders (DAGO) Number 21, dated 1969
* Meritorious Unit Commendation for the period 1 July 1967 to 31 March 1968 by DAGO Number 42, dated 1969
* RVN Civil Actions Honor Medal First Class Unit Citation for the period October 1965 to 7 April 1970 by DAGO Number 53, dated 1970



14.  Army Regulation 600-8-22 (Military Awards), 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, he participated in the following three campaigns:

* Vietnam Counteroffensive, Phase II (1 July 1966 - 31 May 1967)
* Vietnam Counteroffensive, Phase III (1 June 1967 - 29 January 1968)
* Tet Counteroffensive (30 January 1968 - 1 April 1968)

15.  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.  General orders show the applicant was awarded the Bronze Star Medal and the Army Commendation Medal; therefore, these awards should be added to his DD Form 214.

2.  He contends shrapnel was imbedded in his knee as a result of being wounded in the RVN.  However, his DA Form 20 shows he sustained shrapnel scratches to his body on 30 May 1967 and this entry is recorded in item 30 of his DD Form 214.  His service record is void of evidence which indicates shrapnel penetrated his body.

3.  The Radiology Reports, dated 17 May 2010, indicate he had shrapnel fragment in the soft tissue of his right distal femur.  In the absence of evidence to confirm this is the same shrapnel which caused scratches to his body on 30 May 1967, there is no basis for amending item 30 on his DD Form 214 to reflect shrapnel was imbedded in his knee.  

4.  The evidence of record does not show he was disqualified from receiving the first award of the Army Good Conduct Medal for the period 9 August 1966 through 26 July 1968.  Although he received one Article 15, he was promoted to SP5 and received "excellent" conduct and efficiency ratings during this period of service.  Therefore, it appears he has met the requirements for the first award of the Army Good Conduct Medal for the period 9 August 1966 through 26 July 1968 and correction of his records to show this award.

5.  He was assigned to the 8th Battalion, 6th Artillery during a period it was cited for award of the RVN Gallantry Cross with Palm Unit Citation, Meritorious Unit Commendation, and the RVN Civil Actions Honor Medal First Class Unit Citation.  Therefore, he is entitled to correction of his DD Form 214 to show these awards.

6.  His DD Form 214 currently reflects the Vietnam Service Medal.  Additionally, he received credit for participation 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 (1st Award) for the period 9 August 1966 through 26 July 1968; 

   b.  amending item 24 of his DD Form 214 by adding the Bronze Star Medal, Army Commendation Medal, Army Good Conduct Medal (1st Award), 
RVN Gallantry Cross with Palm Unit Citation, Meritorious Unit Commendation, and the RVN Civil Actions Honor Medal First Class Unit Citation; and

	c.  by deleting the Vietnam Service Medal from item 24 of his DD Form 214 and adding 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 amending item 30 of his DD Form 214 to show the entry “Wounds:  Shrapnel imbedded in knee.”




      _______ _   __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)                                         AR20100017839



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ABCMR Record of Proceedings (cont)                                         AR20100017839



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