IN THE CASE OF:	  

		BOARD DATE:	  3 March 2011

		DOCKET NUMBER:  AR20100021262 


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 the DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) of her deceased husband, a former service member (FSM), be corrected to show award of the Purple Heart and all other awards or decorations he may be authorized. 

2.  The applicant states she believes it is in the interest of justice to award her late husband the Purple Heart and all other medals or decorations he is authorized. 

3.  The applicant provides:

* FSM's DD Form 214
* FSM's Department of Veterans Affairs rating decision
* FSM Death Certificate
* Certificate of Marriage

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel states he supports the applicant's request for correction of her late husband's DD Form 214





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 FSM's records show he was inducted into the Army of the United States on 24 October 1966 and he held military occupational specialty 11B (Light Weapons Infantryman).

3.  His records further show he served in the Republic of Vietnam from on or about 23 August 1967 to 26 August 1968.  He was assigned to C Troop, 2nd Squadron, 5th Cavalry Regiment. 

4.  He was honorably released from active duty on 18 February 1969 and he was transferred to the U.S. Army Reserve Control Group to complete his remaining Reserve obligation.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the:

* National Defense Service Medal
* Combat Infantryman Badge
* Vietnam Service Medal with one bronze service star
* Vietnam Campaign Medal with "1960" Device

6.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not reflect a combat injury or wound and item 41 (Awards and Decorations) lists, in addition to the above awards, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-14), but it does not show award of the Purple Heart.

7.  His records do not contain general orders which authorized him award of the Purple Heart and his medical records are not available for review with this case.

8.  His name is not shown on the Vietnam casualty roster.
9.  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 U.S. Army Human Resources Command, failed to reveal any Purple Heart orders for the FSM.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that 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.  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.

11.  Army Regulation 600-8-22, paragraph 2-13, contains the regulatory guidance on the Vietnam Service Medal.  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 FSM participated in the following campaigns:

* Vietnam Counteroffensive, Phase III, 1 June 1967 to 29 January 1968
* TET Counteroffensive, 30 January to 1 April 1968
* Vietnam Counteroffensive, Phase IV, 2 April to 30 June 1968.
* Vietnam Counteroffensive, Phase V, 1 July to 1 November 1968.

12.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that during his assignment to the 53rd Signal Battalion, his unit was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for service from 9 August 1965 to 19 May 1965, by Department of the Army General Orders Number 59, dated 1969.

13.  The applicant submitted a copy of the FSM's VA rating decision which shows he was awarded service-connected disability compensation for anxiety, diabetes, "shell fragment wound plantar surface of right foot with callus," and hepatitis.





DISCUSSION AND CONCLUSIONS:

1.  General orders awarded the FSM's unit in Vietnam the Republic of Vietnam Gallantry Cross with Palm Unit Citation; therefore, he is entitled to correction of his DD Form 214 to show this unit award.

2.  Special orders awarded him the Marksman Marksmanship Qualification Badge with Rifle Bar (M-14) which is not shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show this badge.

3.  The evidence of record shows he participated in four campaign phases during his tour in Vietnam.  Therefore, he is entitled to four bronze service stars for wear on his already-awarded Vietnam Service Medal.

4.  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 the sole justification for the award.  

5.  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.

6.  The FSM's record is void of any orders that show he was awarded the Purple Heart, his name is not shown on the Vietnam casualty roster, his DA Form 20 does not indicate any combat wounds, his medical records are not available for review, and the VA rating decision the applicant submitted does not conclusively show the FSM was injured as a result of enemy action.

7.  Notwithstanding the applicant’s 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 the FSM 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 adding to the FSM's DD Form 214 the:

* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Marksman Marksmanship Qualification Badge with Rifle Bar
* Four (instead of one) 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)                                         AR20100021262



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ABCMR Record of Proceedings (cont)                                         AR20100021262



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