IN THE CASE OF:	  	

		BOARD DATE:	  16 November 2010

		DOCKET NUMBER:  AR20100019105 


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 an audit of his records to show all awards and decorations he earned as a result of his service in Vietnam, specifically the Purple Heart.

2.  The applicant states he and other Soldiers were assigned a mission to fill sand bags.  They rode in a truck and proceeded to the designated location. The truck was hit by sniper fire and he fell off the truck when the driver swerved to avoid the incoming fire.  He injured his right knee and hands and received treatment.  The medic told him he would be put in for the Purple Heart.  However, soon, the brigade was relocated and the award was forgotten.

3.  The applicant did not provide any documentary evidence.

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 was inducted into the Army of the United States on 10 December 1965 and held military occupational specialty 82C (Artillery Surveyor).  He served in the Republic of Vietnam from on or about 15 September 1966 to on or about 8 September 1967.  He was assigned to Headquarters Battery, 6th Battalion, 29th Artillery.

3.  He was honorably released from active duty on 10 September 1967 in the rank/grade of specialist four (SP4)/E-4 and he was transferred to the U.S. Army Reserve Control Group to complete his remaining Reserve obligation.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

5.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) is blank and item 41 (Awards and Decorations) does not show award of the Purple Heart.

6.  His name is not shown on the Vietnam casualty roster.

7.  His available medical records show he underwent a separation physical on 18 September 1967 but there is no record of a combat injury/wound or treatment for such injury/wound.

8.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against and 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.  A wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions pertinent to the Purple Heart.  A physical lesion is not required; however, the wound for which the award is made must have required treatment by medical personnel and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.

	a.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:  injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy generated explosions.

	b.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows:  frostbite or trench foot injuries; heat stroke; food poisoning not caused by enemy agents; chemical, biological, or nuclear agents not released by the enemy; battle fatigue; disease not directly caused by enemy agents; accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; self-inflicted wounds, except when in the heat of battle and not involving gross negligence; post-traumatic stress disorders; and/or jump injuries not caused by enemy action.

9.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows he received "excellent" conduct and efficiency ratings throughout his military service. Furthermore, the applicant's records contain no derogatory information that would have disqualified him from being awarded the Army Good Conduct Medal.

10.  Army Regulation 672-5-1 (Military Awards), in effect at the time, states the Army Good Conduct Medal is awarded to individuals who have completed a qualified 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.  The enlisted person must have had all "excellent" conduct and efficiency ratings and no convictions by a court-martial.  

11.  Headquarters, Department of the Army, published the following General Orders (GO) pertaining to the 6th Battalion, 29th Artillery:

* GO Number 69, dated 1969, awarded this unit the Presidential Unit Citation for service from 18 to 26 May 1967
* GO Number 3, dated 1970, awarded this unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation for service from 1 October 1966 to 31 October 1969
* GO Number 553, dated 1970, awarded this unit the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for service from 1 October 1966 to 31 October 1969

12.  Appendix B of Army Regulation 600-8-22 (Military Awards) shows he participated in the Vietnam Counteroffensive, Phase II (1 July 1966 to 31 May 1967) and the Vietnam Counteroffensive, Phase III (1 June 1967 to 29 January 1968), campaigns during his tour of duty in the Republic of Vietnam.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

DISCUSSION AND CONCLUSIONS:

1.  General orders show the applicant’s unit was awarded the Presidential Unit Citation, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation which are not shown on his records; therefore, he is entitled to correction of his records to show these unit awards. 

2.  The evidence of record shows he was awarded the Vietnam Service Medal.  Additionally, records show he participated in two campaigns while serving in the Republic of Vietnam.  Therefore, he is entitled to two bronze service stars to be affixed to his Vietnam Service Medal.

3.  The evidence of record shows he served honorably from 10 December 1965 through 10 September 1967.  He received "excellent" efficiency and conduct ratings throughout his military service, attained the rank/grade of SP4/E-4, and completed a combat tour in the Republic of Vietnam.  Lacking any derogatory information on file that would have disqualified him, it would be appropriate to award the applicant his first award of the Army Good Conduct Medal based on completion of qualifying service ending with the termination of a period of Federal military service.  Therefore, he is entitled to correction of his records to show this award. 

4.  With respect to the Purple Heart, the criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

5.  His name is not shown on the Vietnam casualty roster, his DA Form 20 does not indicate any combat wounds, his available medical records do not indicate he was wounded and/or injured as a result of hostile action, and he did not submit any evidence supporting award of the Purple Heart.

6.  Notwithstanding his sincerity, in the absence of additional documentary evidence such as witness statements, operation orders, morning reports, after action reports, official orders awarding him the Purple Heart, or additional documentation that conclusively shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to award him the Purple Heart in this case.


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 exemplary behavior, efficiency, and fidelity during the period 10 December 1965 through 10 September 1967; and 

	b.  adding to item 24 of his DD Form 214 the Army Good Conduct Medal (1st Award), Presidential Unit Citation, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and two bronze service stars to be affixed to his already-awarded Vietnam Service Medal.

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 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)                                         AR20100019105



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ABCMR Record of Proceedings (cont)                                         AR20100019105



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