IN THE CASE OF:	  

		BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100022819 


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 that he be awarded the Purple Heart and the Combat Infantryman Badge (CIB).

2.  The applicant states he was wounded in action in Vietnam and never received the Purple Heart or CIB.  He goes on to state that he served in combat 2 months and 25 days and he was subsequently retired by reason of permanent disability for his wounds.  He also states that he served in combat conditions more than 30 days; therefore, he is entitled to the above awards.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 in Sioux Falls, South Dakota on 8 July 1970.  He completed basic training at Fort Leonard Wood, Missouri and advanced individual training in military occupational specialty 11B (Light Weapons Infantryman) at Fort Ord, California before being transferred to Vietnam on 3 December 1970.

3.  He was assigned to Company A, 2d Battalion, 8th Cavalry Regiment, 1st Cavalry Division on 8 February 1971, and General Orders Number 2534 issued by Headquarters, 1st Cavalry Division awarded the applicant the Army Commendation Medal with “V” Device for heroism on 6 February 1971.

4.  On 5 February 1971, he was wounded by small arms fire (M16) while on guard duty when he was mistaken for a hostile force and fired upon by friendly forces.  He received wounds to the right leg with damage to the peroneal artery and a contusion of the peroneal nerve.  He was medically evacuated to Japan where his leg was amputated below the knee.

5.  He was subsequently evacuated to Fitzsimons General Hospital in Denver, Colorado and on 10 November 1971 he was retired by reason of physical disability with a 50% disability rating.  He had served 1 year, 4 months, and 3 days of total active service and his DD Form 214 shows that he was awarded the National Defense Service Medal, the Army Commendation Medal with “V” Device, and the Vietnam Service Medal with one bronze service star.

6.  The applicant’s name appears on the Vietnam Casualty Listing as a casualty on 6 February 1971 and documents contained in his official records indicate that a line of duty investigation was not required, because it was deemed to be the result of hostile action.

7.  A review of the applicant’s records show he had "excellent" conduct and efficiency ratings throughout his period of service and his record is void of any derogatory information that would serve to disqualify him for award of the Army Good Conduct Medal (AGCM).

8.  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.


9.  Army Regulation 600-8-22 also 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.

10.  Army Regulation 600-8-22 states there are basically three requirements for award of the CIB.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.

11.  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.  It shows that during the applicant's assignment, his unit was cited for award of the Republic of Vietnam (RVN) Gallantry Cross with Palm Unit Citation.

12.  Army Regulation 672-5-1 (Awards), in effect at the time, stated the Army Good Conduct Medal (AGCM) was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940; for first award only, 1 year served entirely during the period 7 December 1941 to 2 March 1946; and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  The enlisted person must have had all "excellent" conduct and efficiency ratings.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was wounded by friendly fire on 5 February 1971; however, it was deemed to be the result of hostile action.  Accordingly, he is entitled to award of the Purple Heart for his wounds.

2.  The applicant was also awarded the Army Commendation Medal with “V” Device for heroism while serving as an infantryman in an infantry unit.  Accordingly, it would be appropriate to award him the CIB effective 5 February 1971.





3.  A review of the applicant's records show he had "excellent" conduct and efficiency ratings throughout his service and his records contain no derogatory information that would serve to disqualify him for the AGCM (1st Award).  Therefore, it appears that the failure to award him the AGCM (1st Award) was the result of an administrative error.  Therefore, he should be awarded the AGCM (1st Award) for the period 8 July 1970 to 10 November 1971.

4.  Additionally, the Republic of Vietnam Gallantry Cross with Palm Unit Citation was awarded to his unit in Vietnam during when he was assigned to the unit.  Therefore, he is entitled to this award.

5.  The applicant's DD Form 214 should also be corrected to show the above awards.

BOARD VOTE:

____X___  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  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 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:
   
* Purple Heart for wounds received in action in Vietnam on 5 February 1971 while serving in the rank of private first class (PFC)
* CIB effective 5 February 1971 while serving in the rank of PFC
* AGCM for the period 8 July 1970 to 10 November 1971 while serving in the rank of specialist four (SP4)

   b.  Adding to his DD Form 214 the Purple Heart, AGCM (1st Award), CIB, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.



2.  The Board wants the applicant and all others to know that the sacrifices he made in service to the United States during the Vietnam War are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   _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)                                         AR20100022819



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ABCMR Record of Proceedings (cont)                                         AR20100022819



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