IN THE CASE OF:	  

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100019277 


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, Vietnam Service Medal, and the Republic of Vietnam Campaign Medal with Device (1960).

2.  The applicant states he served in Vietnam from September 1964 to September 1965 as a helicopter pilot in the II Corps area.  He was wounded by a malfunctioning tracer round to his right arm.

3.  The applicant provides:

* a VA Form 21-4138 (Statement in Support of Claim), dated 13 July 2010
* an undated self-authored statement
* a letter from the National Personnel Records Center, dated 21 June 2010
* three DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 21 April 1958 for a period of 3 years.  He was honorably discharged on 20 April 1961 for the purpose of immediate reenlistment.  On 21 April 1963 he reenlisted for another 3-year period.  On 25 April 1963 he was honorably discharged to accept appointment as a warrant officer.  His DD Forms 214 for this period shows he was awarded the Army Good Conduct Medal and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

3.  His records also show he was appointed as a U.S. Army Reserve (USAR) warrant officer and he executed an oath of office on 26 April 1963 and entered active duty that date.  He held military occupational specialty 062B (Helicopter Pilot).  He served in the Republic of Vietnam with the 117th Aviation Company from 12 September 1964 to 9 September 1965.

4.  He was released from active duty on 25 August 1966 in the rank of chief warrant officer two and he was transferred to the USAR to complete his remaining service obligation.

5.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 for this period shows the Armed Forces Expeditionary Medal (Vietnam), Army Aviator Badge, and the Air Medal with 15th Oak Leaf Cluster.

6.  Item 21 (Awards and Decorations) of his DA Form 66 (Officer Qualification Record) does not show the Purple Heart, Vietnam Service Medal, and Republic of Vietnam Campaign Medal with Device (1960).

7.  His records do not contain general orders which authorized him award of the Purple Heart.

8.  His name is not shown on the Vietnam casualty roster and his available medical records do not reflect a combat wound or injury.

9.  He submitted:

	a.  a VA Form 21-4138, dated 13 July 2010, wherein he states that he was injured during a combat operation near Qui Nhon in the dry season.  He was on 

an assault assignment flying a gunship when one of the 50 caliber gun barrels malfunctioned and a phosphorous tracer round caught his right arm.  He sought treatment with the flight surgeon at the 117th Aviation base at Qui Nhon.  He was treated and released back to duty.

	b.  a self-authored statement wherein he states he was conducting an air assault mission when he was hit by a tracer round which came through the right door and caused burns on his right arm.  He was treated by the flight surgeon but refused the Purple Heart.

10.  Army Regulation 600-10 (The Army Casualty System), then in effect, prescribes policies and procedures for the operation of the Army Casualty System.  These policies and procedures include casualty reporting, casualty notification, and survivor assistance.  The regulation, in pertinent part, states that when reporting a casualty, a determination as to whether the casualty is "battle," "non-battle," or unknown is required in the initial report.

11.  Army Regulation 600-8-22 (Military Awards) provides for the following awards:

	a.  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.  The Purple Heart may also be awarded 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.

		(1)  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.

		(2)  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.

	b.  The Vietnam Service Medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.  Service members who earned the Armed Forces Expeditionary Medal for service in Vietnam between 1 July 1958 and 3 July 1965 may elect to receive the Vietnam Service Medal instead of the Armed Forces Expeditionary Medal.  However, no service member may be issued both medals for service in Vietnam.

	c.  The Republic of Vietnam Campaign Medal with Device (1960) was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973.  Qualifying service included assignment in Vietnam for 6 months or more.

	d.  The Armed Forces Expeditionary Medal is awarded for qualifying service after 1 July 1958 in military operations within a specific geographic area during a specified time period.  It states individuals qualified for the Armed Forces Expeditionary Medal for service in Vietnam from 1 July 1958 and 3 July 1965 (inclusive) shall remain qualified for that medal.  Upon request, the Vietnam Service Medal may be awarded in lieu of the Armed Forces Expeditionary Medal, but the regulation requires that the Armed Forces Expeditionary Medal be removed from the records of the individual.  No person will be entitled to both awards for Vietnam service.

	e.  The National Defense Service Medal 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.

12.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam.  This pamphlet shows the 117th Aviation Company was cited for award of the Presidential Unit Citation for the period 10-13 June 1965 by Department of the Army General Orders (DAGO) Number 43, dated 1966

13.  Department of the Army Pamphlet 672-3, paragraph 6d states that Department of the Army General Orders 8, 1974, announced award of the 

Republic of Vietnam Gallantry Cross with Palm Unit Citation to 
Headquarters, U.S. Army Vietnam and its subordinate units during the period
20 July 1965 to 28 March 1973.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant served a qualifying period of service in Vietnam from 12 September 1964 to 9 September 1965 for award of the Republic of Vietnam Campaign Medal with Device (1960).  Therefore, his
DD Form 214 for the period ending 25 August 1966 should be corrected to show this award.

2.  The evidence of record shows the applicant was previously awarded the Army Good Conduct Medal and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar which are not shown on his DD Form 214 for the period ending
25 August 1966.  Therefore, he is entitled to correction of his DD Form 214 for the period ending 25 August 1966 to show these awards. 

3.  General orders awarded his unit the Presidential Unit Citation.  General orders also awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973.  Therefore, his DD Form 214 for the period ending 25 August 1966 should be corrected to show these unit awards.

4.  The evidence of record shows the applicant served a qualifying period of service for award of the National Defense Service Medal.  Therefore, his DD Form 214 for the period ending 26 August 1966 should be corrected to show this award.

5.  With respect to the Vietnam Service Medal, the evidence of record shows the applicant was awarded the Armed Forces Expeditionary Medal for his service in Vietnam.  By regulation, no person will be entitled to both awards for Vietnam service.  Upon request, the Vietnam Service Medal may be awarded in lieu of the Armed Forces Expeditionary Medal, but the regulation requires that the Armed Forces Expeditionary Medal be removed from the records of the individual.  

6.  With respect to the Purple Heart, the Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he or she is entitled to it upon meeting specific criteria.  When contemplating an award of this decoration, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for the award.  
7.  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.

8.  His record is void of any orders that show he was awarded the Purple Heart, his name is not shown on the Vietnam casualty roster, and his available medical records do not reflect a combat wound/injury or treatment for a combat wound/injury. 

9.  The Purple Heart may also be awarded 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.  The applicant describes an accidental discharge in this case.  Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; except when in the heat of battle and not involving gross negligence; are disqualified from award of the Purple Heart.

10.  Notwithstanding the applicant's sincerity, in the absence of official documentary evidence such as operation orders, morning reports, after action reports, official orders to corroborate the events that led to his alleged injury, or additional documentation that conclusively shows he was wounded or injured as a result of hostile action or in the heat of battle 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 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 adding to item 26 of his DD Form 214 for the period ending on 25 August 1966 the:

* Army Good Conduct Medal (1st award)
* National Defense Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Presidential Unit Citation
* Republic of Vietnam Gallantry Cross with Palm Unit Citation

2.  The Board further determined 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 and Vietnam Service Medal.

3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by him in service to our Nation.  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)                                         AR20100019277



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ABCMR Record of Proceedings (cont)                                         AR20100019277



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