IN THE CASE OF:	

		BOARD DATE:	  24 February 2011

		DOCKET NUMBER:  AR20100021321 


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 the records of his deceased brother, a former service member (FSM), to show awards of the:

* Purple Heart
* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* any and all awards as a result of his service in Vietnam

2.  The applicant states his brother was killed in Vietnam.  He is unsure what awards or decorations which his brother is entitled to.

3.  The applicant provides copies of:

* letter to the National Personnel Records Center
* his birth certificate
* FSM's birth certificate
* parent's marriage 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 FSM's records show he was inducted into the Army of the United States on 11 May 1966.  He completed basic combat and advanced individual training at Fort Bliss, TX, and he was awarded military occupational specialty 76P (Stock Control and Accounting Specialist).

3.  The FSM's records show he arrived in Vietnam on 18 January 1967 and he was assigned to the 79th Transportation Company, 14th Transportation Battalion.  He was promoted to specialist four/E-4 on 12 October 1967.

4.  On 12 November 1967, the FSM was the driver of a military vehicle when the vehicle hit the shoulder of the road causing him to lose control and overturn.  He and a passenger were thrown from the vehicle and pinned beneath the right door.  The FSM was pronounced dead at the scene.  The DD Form 1300 (Report of Casualty) shows his death as "non-battle."

5.  On 14 November 1967, a Western Union telegram was sent to the FSM's parents in Whittier, CA, informing them the FSM died in Vietnam on 12 November 1967 as a result of the accident.

6.  Item 41 (Awards and Decorations) of the FSM's DA Form 20 (Enlisted Qualification Record) shows he was authorized or awarded the National Defense Service Medal, Vietnam Service Medal, and Republic of Vietnam Campaign Medal with Device (1960).

7.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify 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.  Additionally, this regulation provides for award of the Purple Heart 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.

	a.  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 -laced 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.

	b.  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.

8.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows during his service with the 79th Transportation Company in Vietnam, the FSM's unit was awarded the:

* Meritorious Unit Commendation for service from 1 November 1966 to 31 October 1967 based on Department of the Army General Orders Number 48, dated 1968
* Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 8, dated 1974

9.  Appendix B of Army Regulation 600-8-22 shows that during the FSM's service in Vietnam, participation credit was awarded for the Vietnam Counteroffensive Phase II (1 July 1966-31 May 1967) and Vietnam Counteroffensive Phase III (1 June 1967-29 January 1968) campaigns.  This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the records of his deceased brother be corrected to show awards of the Purple Heart, National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), and any and all awards the FSM earned as a result of his service in Vietnam.

2.  General orders awarded the FSM's unit in Vietnam the Meritorious Unit Commendation and the Republic of Vietnam Gallantry Cross with Palm Unit Citation which are not shown on his records; therefore, he is entitled to correction of his records to show these unit awards.

3.  The evidence of record shows the FSM was awarded the Vietnam Service Medal.  Additionally, he participated in two campaigns while serving in the Republic of Vietnam; therefore, he is entitled to two bronze service stars to be affixed to his already-awarded Vietnam Service Medal.

4.  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 the sole justification for the award.

5.  The FSM died as a result of a vehicle accident.  By regulation, accidents and/or accidental wounding or death not related to or caused by enemy action and self-inflicted wounds, except when in the heat of battle and not involving gross negligence, are examples of injuries or wounds which clearly do not justify award of the Purple Heart.

6.  Regrettably, absent evidence which conclusively shows the FSM sustained wounds or injuries as a result of hostile action there is an insufficient basis for awarding the Purple Heart to the FSM.

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 is 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 

preparing an appropriate document showing his entitlement to the following awards:

* National Defense Service Medal
* Vietnam Service Medal with two bronze service stars
* Republic of Vietnam Campaign Medal with Device (1960)
* Meritorious Unit Commendation
* 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 award of 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)                                         AR20100021321



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ABCMR Record of Proceedings (cont)                                         AR20100021321



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