IN THE CASE OF:	  

		BOARD DATE:	    26 October 2010

		DOCKET NUMBER:  AR20100022864 


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 award of the Purple Heart and any other awards issued subsequent to his retirement. 

2.  The applicant states he was wounded in the right lower leg by shell fragments from a 500 lb. bomb that exploded under the front end of his tank in Vietnam.  The medical records documenting his wound were temporarily stored in the armored personnel carrier (APC) that his platoon used as an office while in the field.  This APC later hit a mine and burned to the ground with his records.  At the time, no one thought about the lost records.  When he was discharged, he discovered the Purple Heart had not been awarded and that it was no longer possible to make contact with his crew members who witnessed the event.  However, he was able to reestablish contact with the crew at a later date. 

3.  The applicant provides the following documents:

* DD Form 214 (Report of Separation from Active Duty)
* A self-authored letter
* A letter from his former platoon leader
* Two letters from former platoon members

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's records show he enlisted in the Regular Army on 1 June 1954 and held military occupational specialty (MOS) 131.60 (later renamed MOS 11E) (Armored Crewman).  He served through multiple reenlistments in various staff and leadership positions and attained the rank of first sergeant (1SG).  

3.  His records show he completed several periods of overseas/foreign service as follows:

* Germany, from 7 May 1955 to 8 September 1956; 31 December 1963 to 11 December 1965; and 14 September 1970 to 11 September 1973
* Korea, from 13 December 1958 to 15 January 1960 and 17 December 1960 to 17 April 1962
* Republic of Vietnam, from 25 November 1967 to 23 November 1968.  He was assigned to Troop C, 3rd Squadron, 5th Cavalry, 9th Infantry Division

4.  He was honorably retired on 30 June 1974 and he was placed on the retired list in his retired rank of 1SG on 1 May 1974.  He completed 21 years, 3 months, and 15 days of creditable active service.  

5.  Item 20 (Have you ever had any illness or injury other than those already noted? (If yes, specify when, where, and give details)) of the applicant's Standard Form 93 (Report of Medical History), dated 20 February 1974, was checked, "no."  In the remarks section in the pertinent portion of this item the applicant noted he had gout, a profile for hearing loss, high blood pressure, a broken nose, and had been hospitalized to remove cartilage from his nose.

6.  The applicant's records show he was issued the following discharge and/or separation documents:

	a.  DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period 24 August 1955 through 3 June 1958 shows in item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) the National Defense Service Medal.

	b.  DD Form 214 for the period 4 June 1958 through 3 June 1964 shows in item 26 a Letter of Commendation; the Expert Marksmanship Qualification Badge with Submachine Gun (.45 caliber), Pistol (.45 caliber), and Lightweight Machinegun (7.62 millimeters); and Good Conduct Medal.

	c.  DD Form 214 for the period 4 June 1964 through 5 March 1970 shows in item 24 the Good Conduct Medal (3rd Award), Army Commendation Medal, Vietnam Service Medal, Vietnam Campaign Medal, Combat Infantryman Badge, and Valorous Unit Award.

	d.  DD Form 214 for the period 6 March 1970 through 30 June 1974 shows in item 26 the National Defense Service Medal with 1st Oak Leaf Cluster, Good Conduct Medal (1st through 6th Award), Drill Sergeant Identification Badge, Vietnam Service Medal with 5 bronze service stars, Army Commendation Medal, 2 overseas service bars, Combat Infantryman Badge, Vietnam Campaign Medal with Device (1960), Valorous Unit Award, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Bronze Star Medal. 

7.  Item 40 (Wounds) of his contemporaneous DA Forms 20 (Enlisted Qualification Record) does not reflect a combat wound or injury and item 41 (Awards and Decorations) does not show award of the Purple Heart.

8.  His records do not contain official orders awarding him the Purple Heart.

9.  His name is not shown on the Vietnam casualty roster.

10.  His available medical records do not show he was wounded or injured in action or treated for such wound or injury.

11.  He submitted the following documents:

	a.  A self-authored statement, dated 21 October 2009, wherein he states he served as the platoon sergeant of the 1st Platoon, C Troop.  His platoon was assigned to patrol duties outside Quang Tri City (QTC).  Their base was Landing Zone (LZ) Hardcore (HC), nearly five miles east of QTC and at the fork of a river. Two bridges were available for traffic but neither was capable of handling the weight of an M48 tank.  On 15 August 1968, he commanded a patrol that was returning from LZ HC to QTC.  The APC crossed the river but the tank continued past the bridge on a by-pass to the "ford."  Before reaching the "ford," there was a huge explosion that lifted the tank about 4 feet in the air.  When the bomb exploded, he was sitting on the tank commander (TC) hatch with his legs outside.  He was hit in the mouth with a piece of steel that cut his mouth and knocked out a tooth.  He also suffered a concussion and bled from his ears.  His driver, gunner, and loader were all in the proper location in the tank and did not suffer any injuries.  The tank was rendered inoperable and his platoon leader called for a Vehicle Track Retrieval (VTR) to move the tank about 100 yards under the protection of infantry Soldiers.  It was repaired that night and was ready again for night operations.  As the applicant removed his boots that night, he also noticed blood and removed five or so pieces of steel from his leg.  His gunner helped him bandage his leg.  He reported his injury to a troop medic who assured him he would enter it into his medical records but the records were later destroyed.  He later had his leg worked on in the United States where more steel was removed. 

	b.  A statement, dated 5 October 2009, from his former platoon leader wherein he states the applicant's platoon hit several mines in Vietnam which makes it now difficult to zero on the exact date.  However, he recalls the platoon conducted mine sweep missions at night and search and destroy missions during the day.  One day in August 1968, the applicant was returning from a mine sweep on a route south of LZ HC in order to ford the river at its shallow but most vulnerable point when the tank hit a command-detonated 500 lb. bomb.  In the heat of battle, the immediate focus was to get everyone out of harm's way.  Nevertheless, the applicant suffered a concussion with severe ear damage and shrapnel from the device.  This had a material effect on his hearing and required him to have some dental work done.  

	c.  A statement, dated 9 November 2009, from a former member (tank driver) of the applicant's platoon wherein he states on 15 August 1968, during a mine sweep mission, moving from LZ HC to QTC, their tank continued past the bridge, down on a bypass, to the river when a 500 lb. bomb exploded under the right front end of the tank.  He did not know the extent of the damage; nevertheless, after the VTR pulled it to safe location, it was repaired that night.  He remembers the applicant complaining of pain in his leg and foot and when the applicant removed his boots, he observed his bloody socks.  He also observed the applicant removing several steel splinters from his lower leg.  He helped patch up the applicant and proceeded to get ready for the next mission.  He also remembers dried blood on the applicant's right ear and that his front tooth had been knocked out by a piece of flying steel.

	d.  An undated statement from another former member (tank gunner) of the applicant's platoon wherein he states on or around 20 August 1968, they were returning from a mine sweep mission to QTC when their tank hit a bomb that damaged the right front of the tank.  He remembers the applicant sitting at the TC hatch manning the .50 caliber machinegun with his legs to the outside.  He remembers the applicant being hit in the mouth and his tooth being broken by a piece of metal.  The tank was pulled by a VTR and it was ultimately repaired that night.  Later that same night, he remembers the applicant complained of pain in his shin.  When he removed one of his boots, his sock was covered with blood.  He also removed several splinters from his leg and had it bandaged, the applicant had a concussion, and his ear was bleeding.  The damaged tank was never entered in the morning report and he does not know if an entry was made in the applicant's medical records.

12.  Army Regulation 600-8-22 (Military Awards) provides for the following awards:  

	a.  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.  

	b.  The Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea.  The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense.

13.  Department of the Army General Orders Number 43, dated 1970, awarded the 3rd Squadron, 5th Cavalry the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for service from 19 December 1966 to 15 February 1968.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the Purple Heart and any other awards issued subsequent to his retirement.

2.  The evidence of record shows he served in Korea from 13 December 1958 to 15 January 1960 and 17 December 1960 to 17 April 1962.  Therefore, he served a qualifying period for award of Korea Defense Service Medal and he is entitled to correction of his DD Form 214 to show this medal.

3.  General orders awarded his unit in Vietnam the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation which is not shown on his records; therefore, he is entitled to correction of his DD Form 214 to show this award. 

4.  With respect to the Purple Heart, 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.
5.  His 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 show he had any combat wounds; and his available medical records do not reflect treatment for a combat injury or wound. 

6.  When the applicant completed his retirement Standard Form 93, he indicated he had been treated for a number of medical conditions, but did not indicate that he had suffered any shrapnel injury or a broken tooth.

7.  The witness statements he submitted were carefully considered; however, witness statements alone based solely on recollection of events that occurred some 40 years after the fact are insufficient by themselves to award the applicant the Purple Heart.  And, unfortunately, more contemporaneous evidence (i.e., the Standard Form 93) does not corroborate those statements.

8.  Notwithstanding the applicant's sincerity and the sincerity of his former platoon members, in the absence of official documentary evidence such as operation orders, morning reports, after action reports, or official orders to corroborate the events that occurred in August 1968 near QTC, and additional documentation that conclusively shows the applicant 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 his DD Form 214, for the period 6 March 1970 through 30 June 1974, the Korea Defense Service Medal and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.

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)                                         AR20100022864



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ABCMR Record of Proceedings (cont)                                         AR20100022864



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