IN THE CASE OF:	  

		BOARD DATE:	  1 February 2011

		DOCKET NUMBER:  AR20100019087 


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 that he be awarded the Purple Heart for wounds received in Vietnam on 3 July 1966.

2.  The applicant states that on 3 July 1966 he was a member of 3rd Platoon, Company B, 1st Battalion, 35th Infantry Regiment, 25th Infantry Division, when they were in a very bad battle that resulted in 17 killed in action (KIA) and 32 wounded in action (WIA).  He goes on to state that he was wounded above the right knee; however, due to the confusion and the fact that the platoon leader, the company commander, and all but one squad leader were killed in action, he presumed no one received the Purple Heart.  He has been unable to obtain morning reports for his unit for 3 and 4 July 1966, but he is providing other documents to support his request.

3.  The applicant provides copies of:

* Standard Form 519-A (Radiographic Report)
* promotion orders to pay grade E-3
* morning report, dated 12 October 1966, advancing him to pay grade E-3
* unit personnel roster
* daily staff journal from his unit on 3 July 1966
* article titled, "Vietnam Combat Operations – 1966"



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 in St. Louis, Missouri, on 7 December 1965.  He was transferred to Fort Hood, Texas, to undergo basic training and then to Fort Polk, Louisiana, to undergo advanced individual training as a light weapons infantryman before being transferred to Vietnam on 18 May 1966.

3.  He was assigned to Company B, 1st Battalion, 35th Infantry Regiment, 25th Infantry Division, for duty as a rifleman.  He was advanced to pay grade E-3 on 13 June 1966.

4.  On 12 July 1966, Special Orders Number 145 published by Headquarters, 25th Infantry Division, awarded the applicant and 60 other members of his unit the Combat Infantryman Badge (CIB).

5.  On 10 October 1966, he was advanced to pay grade E-4.  On 1 March 1967, he was medically evacuated to the hospital at Camp Zama, Japan after receiving credit for participation in three campaigns.  The records are silent as to the reason for his evacuation.  He was subsequently transferred to Fort Leonard Wood, Missouri, in May 1967.  He was promoted to the rank of sergeant (SGT) on 19 July 1967.  He remained at Fort Leonard Wood until he was honorably released from active duty (REFRAD) on 5 December 1967 due to the expiration of his term of service.

6.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued at the time of his REFRAD shows he was awarded the Expert Marksmanship Badge with Rifle Bar, the Combat Infantryman Badge, the Vietnam Service Medal (VSM), and the Republic of Vietnam Campaign Medal.

7.  A review of the applicant's official records shows he participated in two campaigns in Vietnam and he had "excellent" conduct and efficiency ratings throughout his service.  His records are void of any derogatory information that would serve to disqualify him for award of the Army Good Conduct Medal (AGCM).

8.  A search of the Vietnam casualty listing and 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 the applicant was reported as a casualty or any orders for the award of the Purple Heart.

9.  The x-ray report provided by the applicant shows the applicant was referred for an x-ray of a shrapnel wound to the right knee on 4 July 1966.  It revealed a metallic foreign body above the patella.  There is no evidence in the available records to show what treatment he received for this wound.

10.  The battalion daily staff journals submitted by the applicant show his unit (Company B) first established enemy contact at 0005 hours on 3 July 1966 and continued throughout the day.  At 1600 hours, another officer assumed command of the company.  At 2400 hours when the log was closed out, the unit was still in contact with the enemy and had 17 KIA and 25 WIA.

11.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) was published to assist commanders and personnel officers in determining or establishing the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  Table 1 (Army Units in Numerical Order) indicates the applicant's unit was subsequently awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation during the period he was assigned to the unit.

12.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify 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.

13.  Army Regulation 600-8-22 states a bronze service star is worn on the appropriate service medal, to include the Vietnam Service Medal, for each campaign participation credit.

14.  Army Regulation 672-5-1 (Military Awards), in effect at the time, stated the AGCM was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940; for the 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.  

15.  Army Regulation 600-8-22 states the National Defense Service Medal (NDSM) is awarded for honorable active service for any period between 27 July 1950 and 27 July 1954, 1 January 1961 and 14 August 1974, 2 August 1990 and 30 November 1995, and 11 September 2001 and a date to be determined.  

DISCUSSION AND CONCLUSIONS:

1.  While there is no specific evidence to show the applicant was wounded as a result of enemy action, there is sufficient evidence to make a reasonable presumption that such was the case.

2.  The evidence provided by the applicant clearly shows his unit was engaged in enemy contact throughout the day of 3 July 1966, and on 4 July 1966 an x-ray was taken of his knee and revealed a fragment of shrapnel.

3.  Therefore, it is reasonable, given the circumstances, that he was in fact wounded in action on 3 July 1966 and that treatment was rendered when the 
x-ray was completed.  This is further supported by the fact that 61 members of his company were awarded the CIB on 12 July 1966.  Accordingly, it would be in the interest of justice to award him the Purple Heart at this time for wounds received in action in Vietnam on 3 July 1966 while serving in the rank of private first class (PFC).

4.  The evidence of record shows the applicant served in three campaigns in Vietnam and is entitled to three bronze service stars for wear on his already-awarded VSM.  Additionally, he is entitled to the NDSM and to have the NDSM and Republic of Vietnam Gallantry Cross with Palm Unit Citation added to his records.

5.  A review of his records shows the applicant had "excellent" conduct and efficiency ratings throughout his service and his records contain no derogatory information that would serve to disqualify him for award of the AGCM.  Therefore, it must be presumed that the failure to award him the AGCM was the result of an administrative error.  Accordingly, it would be in the interest of justice to award him the AGCM for the period 7 December 1965 to 6 December 1967 while serving in the rank of SGT.

BOARD VOTE:

____X____  ____X____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* awarding him the Purple Heart for wounds received in action in Vietnam on 3 July 1966 while serving in the rank of PFC
* awarding him the AGCM for the period 7 December 1965 to 6 December 1967 while serving in the rank of SGT
* deleting from his DD Form 214 his award of the VSM and adding the VSM with three bronze service stars
* adding to his DD Form 214 his awards of the Purple Heart, AGCM, NDSM, and Republic of Vietnam Gallantry Cross with Palm Unit Citation

2.  The Board wants the applicant and all others to know the sacrifices he made in service to the United States during the Vietnam War are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.



      _____________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)                                         AR20100019087



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ABCMR Record of Proceedings (cont)                                         AR20100019087



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