IN THE CASE OF:	  

		BOARD DATE:	    17 February 2011

		DOCKET NUMBER:  AR20100021157 


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) to show award of the Purple Heart (PH).

2.  The applicant states:

   a.  he was awarded the PH at Fort Bliss, TX, for wounds he received while serving in Vietnam on 12 May 1969; and

   b.  a DD Form 215 (Correction to DD Form 214) should be issued.

3.  The applicant provides a copy of his:

* DD Form 214
* PH certificate

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 on 15 May 1968.  He was trained in, awarded, and served in military occupational specialty 16D (Hawk Missile Crewman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) confirms he served in the Republic of Vietnam (RVN) from 3 October 1968 to 19 May 1969.  Item 40 (Wounds) contains the entry "multiple frag[mentation] wounds both legs/right arm -- 12 May 1969."

4.  The PH is not included among the list of awards shown in Item 41 (Awards and Decorations) of his DA Form 20.

5.  The applicant’s Official Military Personnel File (OMPF) includes a Western Union Telefax and a U.S. Army Vietnam (USARV) message number date time group (DTG) 140312Z MAY 69, stating:

* he was slightly wounded by fragments while at an artillery firing position when the area came under attack by a hostile force
* he received multiple wounds to both ankles and his left arm
* he was treated and hospitalized in the RVN for his wounds

6.  His OMPF also contains a message, DTG 241405Z MAR 70, subject:  Award of PH (applicant's name and social security number) from the commander of
6th Battalion, 61st Artillery, Fort Bliss, TX, to the commander of the 26th Evacuation Hospital, Vietnam that states:

* Request general orders award PH to subject EM [enlisted member] be forwarded this headquarters ASAP [as soon as possible]
* EM received fragmentation wound to both legs and right arm on or about 12 May 1969
* EM discharged your cmd [command] to MHC [Medical Holding Company] and duty on or about 8 July 1969
* Request immediate reply

7.  General Orders Number 5454, issued by Headquarters, Americal Division, dated 22 June 1969, show the applicant was awarded the Bronze Star Medal (BSM) with "V" Device for heroism in connection with ground operations against a hostile force in the RVN on 12 May 1969.  The BSM citation states, in part, "…The insurgent was able to fire a rocket propelled grenade round before being killed, and (applicant) suffered numerous fragmentation wounds.  Despite his injuries, (applicant) stayed at the position…."

8.  On 19 June 1970, the applicant was honorably released from active duty (REFRAD) in the rank/grade of private first class (PFC)/E-3 after completing
1 year, 11 months, and 29 days of total active service.  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 with 3 bronze service stars
* RVN Campaign Medal with Device (1960)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar

9.  The applicant's record is void of any orders or other documents that indicate he was ever awarded the PH by proper authority while serving on active duty.  It does contain USARV message number DTG 241405Z MAR 70 which shows a request was made to publish general orders to award the PH to the applicant.

10.  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 PH pertaining to the applicant.

11.  Review of the Vietnam casualty roster shows the applicant's name is listed as a casualty on 12 May 1969 under casualty status code "23."  This casualty code refers to "hostile wounded in action, not serious, hospitalized."

12.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart 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 by medical personnel, and the medical treatment must have been made a matter of official record.

13.  Review of the applicant's record indicates entitlement to an additional award and decorations that is not shown on his DD Form 214.

14.  Department of the 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 Soldiers for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  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, USARV and its subordinate units during the period 20 July 1965 to 28 March 1973.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was wounded as a result of hostile action on 12 May 1969, he received medical treatment for his wound, and a record of his treatment is documented in his military record as evidenced by the Western Union Telefax, USARV message DTG 140312Z MAY 69, and message DTG 241405Z MAR 70 contained in his OMPF.  His name is also listed on the Vietnam casualty roster.  As a result, the regulatory burden of proof necessary to support award of the PH has been met in this case.  Therefore, it would be appropriate to add the PH to his DD Form 214 at this time.

2.  The evidence of record confirms the applicant was awarded the BSM with “V” Device for valor by the appropriate award authority and that it was announced in official orders.  This award is not currently reflected on his DD Form 214 and should be added at this time.

3.  In addition, based on his service in the RVN, the applicant is entitled to the RVN Gallantry Cross with Palm Unit Citation.  Therefore, it would be appropriate to add this unit award to his DD Form 214.

BOARD VOTE:

___X___  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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:

	a.  adding to item 24 of his DD Form 214 the Purple Heart, Bronze Star Medal with "V" Device, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation; and

	b.  issuing him a DD Form 215 to reflect these changes.



      _________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)                                         AR20100021157



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ABCMR Record of Proceedings (cont)                                         AR20100021157



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