IN THE CASE OF:	  

		BOARD DATE:	  15 February 2011

		DOCKET NUMBER:  AR20100019777 


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 two awards of the Purple Heart (PH) and the Combat Infantryman Badge (CIB).  He also requests that these awards be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  He states:

* He served in Vietnam from November 1969 to October 1970
* He performed perimeter security detail by setting up night ambushes
* On the night of 11 February 1970 he sustained shrapnel injuries to his left leg from mortar rounds
* He was treated by medical personnel and released to his unit
* He did not receive the PH for this injury
* On 29 April 1970, he was the driver of an Armored Personnel Carrier (APC) that was following a tank and he veered 10 feet out of the tracks of the tank and hit a land mine
* The land mine blew off the right side of the APC
* He and the two passengers were injured as a result; one Soldier sustained a broken back
* The three of them were airlifted to a field hospital where they received medical treatment
* He and one other Soldier were released 
* He believes his company commander awarded the two of them the CIB and PH
* His DA Form 201 (Military Personnel Records Jacket) was never forwarded from Vietnam to Fort Hood, TX
* He did not discover the error until he requested his military records from the National Personnel Records Center

3.  He provided copies of:

* A Standard Form (SF) 600 (Chronological Record of Medical Care)
* A DD Form 1380 (U.S. Field Medical Card)
* A Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)

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.  His records show he was inducted into the Army of the United States on 
11 June 1969.  

3.  His DA Form 20 (Enlisted Qualification Record) shows in:

* Item 31 (Foreign Service) he served in Vietnam from 7 November 1969 to 
   21 October 1970
* Item 38 (Record of Assignments) he was assigned to Headquarters and Headquarters Troop (HHT), 1st Squadron, 10th Cavalry Regiment, 4th Infantry Division from 23 November 1969 to 17 May 1970; and A Troop, 1st Squadron, 10th Cavalry Regiment, 4th Infantry Division from 18 May to 21 October 1970
* Item 40 (Wounds) he sustained a ruptured right ear drum on 29 April 1970




* Item 41 (Awards and Decorations):

* National Defense Service Medal (NDSM)
* Vietnam Service Medal (VSM)
* Republic of Vietnam (RVN) Campaign Medal with Device (1960)
* Army Good Conduct Medal (AGCM) (First Award)
* Combat Infantryman Badge (CIB)
* PH (pending General Orders)

4.  His SF 600 shows he was treated by medical personnel for a minor injury (abrasion) to his right leg on 11 February 1970.  The cause of the injury was not stated; however, the wound was dressed and he was released.  

5.  His military personnel record contains Special Orders (SO) Number 92, Headquarters, 4th Infantry Division, dated 2 April 1970.  This order shows he was awarded the CIB.

6.  The DD Form 1380 shows his M113 APC hit a land mine at 1900 hours on 
29 April 1970.  He suffered a ruptured tympanic membrane of the right ear.  This form confirms he received treatment at the medical aid station on the same date and it was signed by a medical officer.

7.  His name does appear on the Vietnam Casualty Roster as having been wounded as a result of hostile action on 29 April 1970.  There are no other entries.  

8.  His military personnel record also contains General Orders (GO) Number 4861, Headquarters, 4th Infantry Division, dated 30 September 1970.  These orders show he was awarded the Army Commendation Medal (ARCOM) for meritorious service in Vietnam from November 1969 to November 1970.  

9.  His DD Form 214 shows he was honorably released from active duty on 
10 June 1971.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the:  

* NDSM
* VSM with two bronze service stars
* RVN Campaign Medal with Device (1960)
* AGCM (First Award)
* Sharpshooter Marksmanship Qualification Badge with (M-14) Rifle Bar

10.  A review of 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 United States Army Human Resources Command failed to reveal any orders awarding him the PH.  

11.  A review of his records indicates entitlement to additional awards which are not shown on his DD Form 214.

12.  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 document shows during the period of his assignment with A Troop,1st Squadron, 10th Cavalry Regiment, 4th Infantry Division his unit was awarded the RVN Gallantry Cross with Palm Unit Citation by Department of the Army, General Orders Number 52 (1971).  

13.  Army Regulation 600-8-22 (Military Awards), paragraph 2-13, contains the regulatory guidance on the VSM.  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, the applicant participated in the following three campaigns:

* Vietnam Winter-Spring 1970 (1 November 1969 to 30 April 1970) 
* DA Sanctuary Counteroffensive (1 May to 30 June 1970)
* Vietnam Counteroffensive, Phase VII (1 July 1970 to 30 June 1971)

14.  Army Regulation 600-8-22 provides, in pertinent part, that the PH is awarded for a wound sustained while in action against an 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, and the medical treatment must have been made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  He contends he is entitled to two awards of the PH.  His contentions were carefully considered; however, they are only partially supported by the evidence of record.

2.  He provided a copy of an SF 600 which shows he was treated for a minor abrasion to his right leg on 11 February 1970; however, this form fails to show the exact cause of his injuries.  Absent of evidence to show his injuries occurred as a result of hostile action; there is insufficient evidence to award him the PH.

3.  The evidence of record shows he was wounded on 29 April 1970 as a result of hostile action.  His wounds required medical treatment and that treatment was made a matter of official record.  Therefore, he is entitled to award of the PH for injuries sustained on 29 April 1970.  

4.  His military personnel record contained a copy of SOs awarding him the CIB.  Therefore, he is entitled to have this award reflected on his DD Form 214. 

5.  His military personnel record also contains a copy of a GO that awarded him the ARCOM for meritorious service in Vietnam.  As a result, he is entitled to have this award reflected on his DD Form 214.  

6.  GOs awarded his unit the RVN Gallantry Cross with Palm Unit Citation. Therefore it would be appropriate to correct his DD Form 214 to show this unit award.

7.  He was previously awarded the VSM with two bronze service stars.  His records show he participated in three campaigns while serving in Vietnam.  Therefore, he is entitled to award of three bronze service stars for wear on his previously-awarded VSM.

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 PH for wounds received on 29 April 1970, 
   
   b.  deleting the Vietnam Service Medal with two bronze service stars from his DD Form 214, and 

c.  adding the following to his DD Form 214:

* PH
* ARCOM
* CIB
* RVN Gallantry Cross with Palm Unit Citation 
* 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 the second award of the PH for injuries sustained on 11 February 1970.  




      __________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)                                         AR20100019777



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ABCMR Record of Proceedings (cont)                                         AR20100019777



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