IN THE CASE OF:	  

		BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100019473 


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) for the period ending 3 November 1971 to show award of the Purple Heart and the Combat Action Badge.

2.  He states, in effect, that on 18 February 1970, he received shrapnel wounds to his right ankle and upper right thigh from friendly fire artillery rounds.  He states the same shell killed two of his former fellow Soldiers.  After the incident, he was treated for his wounds by Army medics.  He indicates in accordance with 
Title 10 of the U.S. Code, section 1129 Purple Heart: Members Killed or Wounded In Action By Friendly Fire statute (8)(b) shows that he and all others that were wounded or killed the night he was wounded should receive the Purple Heart.

3.  He adds through the years he has tried to contact former fellow Soldiers that were present at the time of the incident and recently he has found two former fellow Soldiers that can verify that he was wounded by shrapnel on the date of the incident.

4.  He continues that he meets the requirements for the Combat Action Badge.  He served in the Republic of Vietnam (RVN) from 1969 to 1970 and was directly and indirectly engaged with the enemy by small arms fire, rockets, mortars, and field artillery and received injuries and combat pay during his tour.



5.  He provides:

* a DD Form 214 
* a DD Form 4 (Enlisted Contract- Armed Forces of the United States)
* a copy of a U. S. Military Assistance Command, Vietnam (MACV) report
* pages 2 and 3 of his DA Form 20 (Enlisted Qualification Report)
* a Pacific Stars and Stripes newspaper article titled “Viet Unit ‘Given Wrong Info’ in Shelling of GIs
* a insert for the Purple Heart 10 U. S. Code 1129
* a letter from the National Personnel Records Center
* discharge orders from the U.S. Army Reserve Personnel Center
* two witness statements from former fellow Soldiers
* two memorials for Soldiers from http/www.virtualwall.org, a web site

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 enlisted in the Regular Army on 20 November 1968 and successfully completed basic combat training and advanced individual training.  He was awarded military occupational specialty (MOS) 05C (Radio Teletype Operator).  He was later awarded MOS 72C (Central Office Switchboard Operator).

3.  He arrived in the Republic of Vietnam (RVN) and was assigned to A Company, 44th Signal Battalion on 23 August 1969.  On 1 March 1970, he was reassigned to the 269th Signal Company.

4.  On 22 August 1970, he departed RVN.  On 3 November 1971, he was honorably released from active duty after completing 2 years, 11 Months, and 
13 days of creditable active service.


5.  His DD Form 214 for the period ending 3 November 1971 shows he was awarded:

* National Defense Service Medal
* Vietnam Service Medal with three bronze service stars
* Vietnam Campaign Medal with Device 1960
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-14)
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* two overseas service bars

6.  There are no general orders in his service personnel records that show he was awarded the Purple Heart.  Further, there is no evidence in his service personnel records that shows he was wounded or treated for wounds as a result of hostile action in Vietnam.  The applicant's name is not listed on the Vietnam Casualty Roster.

7.  Page 2 of his DA Form 20 which indicates in item 40 (Wounds) and item 
41 (Awards and Decorations) is not available.

8.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States 
Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to him.

9.  His Army medical treatment records are not available for review.

10.  He provided two witness statements, with dates 2 July 2010 and 6 July 2010, from two former fellow Soldiers.  Both authors stated that rounds of friendly fire hit their unit.  The first author stated that on the morning after the incident he witnessed the wounds to the applicant's ankle and thigh.  The second author stated that he and the applicant had both received wounds from the same shell and witnessed the medical treatment the applicant received by an Army Medic.

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a 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, and the medical treatment must have been made a matter of official record.



12.  Included as part of the Department of Defense Appropriations Act for fiscal year 1994 was an amendment to the rules governing award of the Purple Heart.  While the original rules established that the Purple Heart would be awarded to individuals killed or wounded as a result of hostile action the amendment enabled the Secretaries of each department to award the Purple Heart to members of the armed forces who were killed or wounded in action by weapons fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States.  This ruling granted the service Secretaries the authority to award the Purple Heart to individuals directly engaged in armed conflict who were killed or wounded as a result of "friendly fire."

13.  Army Regulation 600-8-22 states the requirements for award of the Combat Action Badge are branch and MOS immaterial.  Assignment to a combat arms unit or a unit organized to conduct close or offensive combat operations or performing offensive combat operations is not required to qualify for the Combat Action Badge.  However, it is not intended to award the Combat Action Badge to all Soldiers who serve in a combat zone or imminent danger area.  The Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized.  Award of the Combat Action Badge is authorized from 18 September 2001 to a date to be determined.  Award for qualifying service in any previous conflict is not authorized.  Retroactive awards of the Combat Action Badge are not authorized prior to 18 September 2001.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for award of the Purple Heart was carefully considered.  However, the evidence is insufficient for approval of his request.  Further, there are no medical records available to verify he was wounded and treated for wounds received from the friendly fire.  His personnel records do not contain orders for the award or entries supporting the award, and his name is not on the Vietnam Casualty Roster.  Unfortunately, the witness statements from his two former fellow Soldiers were considered, but are insufficient by themselves to award the Purple Heart.  Regrettably, in view of the foregoing, there is insufficient evidence that would warrant granting his requests.

2.  His record shows that he entered the Regular Army on 20 November 1968.  In accordance with Army Regulation 600-8-22, the Combat Action Badge was not approved as an authorized award until 18 September 2001.  Therefore, he does not meet the criteria for this award.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   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)                                         AR20100019473





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ABCMR Record of Proceedings (cont)                                         AR20100019473



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