IN THE CASE OF:	  

		BOARD DATE:	  10 March 2011

		DOCKET NUMBER:  AR20100022916 


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 two awards of the Purple Heart.

2.  The applicant states he was twice wounded in combat in Vietnam as follows:

* on 6 June 1970, shrapnel struck his left leg
* on 11 January 1971, shrapnel struck his head

3.  The applicant provides:

* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 13 February 1967, 14 December 1969, and 31 October 1973
* medical document showing wounds
* Standard Form 539 (Abbreviated Clinical Record)

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 is a retired sergeant first class/E-7 initially enlisted in the Regular Army on 19 December 1946.  He retired on 31 October 1973.

3.  He completed the following periods of foreign service: 

	a.  Germany from 9 February 1956 to 5 November 1958;

	b.  Vietnam from 25 December 1965 to 20 November 1966.  He was assigned to Headquarters and Headquarters Battery (HHB), 2nd Howitzer Battalion, 320th Artillery, from 4 January 1966 to 2 May 1966 and to Headquarters and Headquarters Company (HHC), 1st Brigade, 101st Airborne Division, from 2 May 1966 to 10 November 1966;

	c.  Vietnam from 18 August 1967 to 13 August 1968.  He was assigned to HHC, 212th Aviation Battalion, from 21 August 1967 to 30 January 1968; to Headquarters, I Corps, from 30 January 1968 to 18 March 1968; and to HHB, 2nd Battalion, 320th Artillery, from 18 March 1968 to 13 August 1968; and

	d.  Vietnam from 29 March 1970 to 27 February 1971.  He was assigned to Headquarters, U.S. Military Assistance Command-Vietnam, with duty with the Airborne Advisory Detachment, Advisory Team 162.

4.  He was issued the following discharge and/or separation documents:

	a.  WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge) for the period 19 December 1946 to 11 February 1947.  This form did not list any awards or decorations;

	b.  WD AGO Form 53 (Enlisted Record and Report of Separation – Honorable Discharge) for the period 28 September 1948 to 13 May 1949.  This form listed the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-1) and the Expert Marksmanship Qualification Badge with Carbine Bar;

	c.  DD Form 214 (Report of Separation from the Armed Forces of the United States) for the period 11 September 1950 to 3 March 1952 shows the Parachutist Badge;

	d.  DD Form 214 for the period 12 May 1955 to 13 February 1961 shows the Master Parachutist Badge and the Expert Marksmanship Qualification Badge with Carbine Bar;

	e.  DD Form 214 for the period 14 February 1961 to 13 February 1967 shows the Vietnam Service Medal, Army Good Conduct Medal (3rd Award), National Defense Service Medal (1st Oak Leaf Cluster), the Vietnam Campaign Medal, and two overseas service bars;

	f.  DD Form 214 for the period 14 February 1967 to 14 December 1969 shows the National Defense Service Medal (2nd Award), Valorous Unit Award, Army Good Conduct Medal (4th Award), Master Parachutist Badge, Vietnam Campaign Medal, four overseas service bars, Vietnam Service Medal, Meritorious Unit Citation [sic], and Bronze Star Medal; and

	g.  DD Form 214 for the period 15 December 1969 to 31 October 1973 shows the Combat Infantryman Badge, Air Medal, Bronze Star Medal (2nd Oak Leaf Cluster), Army Good Conduct Medal (5th Award), Vietnam Cross of Gallantry with bronze star, Vietnam Parachutist Badge Master Level, and Expert Marksmanship Qualification Badge with Rifle Bar (M-16).

5.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record), which would have listed any combat injuries, is blank.

6.  His name is listed on the Vietnam casualty roster twice:

* casualty status 52 – indicates non-hostile serious injury or illness; the date of this injury or illness is listed as 16 June 1970
* casualty code 25 – indicates hostile non-serious injury that did not require hospitalization; the date of this injury is listed as 11 January 1971

7.  There are no general orders in his records that show he was awarded the Purple Heart.

8.  During the processing of this case, a member of the Board's staff reviewed the Awards and Decorations Computer Assisted Retrieval System maintained by the Military Awards Branch of the U.S. Army Human Resources Command which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any Purple Heart orders on file for the applicant.

9.  His service medical records contain a Western Union telegram, dated 17 June 1970, notifying the applicant's parents that he was hospitalized on 16 June 1970 in Vietnam at a base camp with a diagnosis of malaria and possible pneumonia.

10.  His service medical records also show he underwent a retirement physical on 1 June 1973 and was found medically qualified for separation.  No combat injuries or wounds are recorded in his medical records.

11.  He submitted:

	a.  A medical document of unknown source and with no name that shows the entries:  wounded, right leg, fragments, 6 June 1970; and wounded, head fragment, 11 January 1971.

	b.  a Standard Form 539, dated 14 June 1971, which shows he suffered from and he was treated for an illness (malaria).

12.  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.

13.  A review of the applicant's records indicates his entitlement to additional awards which are not listed on his records.

14.  Army Regulation 600-8-22 states the World War II Victory Medal is awarded for service between 7 December 1941 and 31 December 1946, both dates inclusive.

15.  Appendix B of Army Regulation 600-8-22 shows that during his multiple tours and/or service in the Republic of Vietnam, participation credit was awarded for eight campaigns as indicated below.  This same regulation states a bronze service star is authorized for wear on the Vietnam Service Medal for participation in each campaign.  A silver service star denotes five bronze service stars.

* Vietnam Counteroffensive – 25 December 1965 - 30 June 1966
* Vietnam Counteroffensive Phase II – 1 July 1966 - 31 May 1967
* Vietnam Counteroffensive Phase III  – 1 June 1967 - 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
* Vietnam Winter to Spring 1970 – 1 November 1969 to 30 April 1970
* Sanctuary Counteroffensive – 1 May to 30 June 1970
* Vietnam Counteroffensive Phase VII  –1 July 1970 to 30 June 1971

16.  Headquarters, Department of the Army (HQDA), published the following general orders (GO) pertaining to the 2nd Battalion, 320th Artillery:

* GO Number 1, dated 1969, awarded this unit the Meritorious Unit Commendation for service from 29 July 1965 to 1 October 1966
* GO Number 51, dated 1971, awarded this unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation for service from 19 July 1968 to 14 May 1969
* GO Number 48, dated 1971, awarded this unit the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for service from 18 March 1968 to 2 May 1970

17.  HQDA GO Number 21, dated 1969, awarded HHC, 212th Aviation Battalion, the Republic of Vietnam Gallantry Cross with Palm Unit Citation for service from 22 February 1967 to 17 May 1968.

18.  HQDA GO Number 51, dated 1971, awarded HQ, U.S. Military Assistance Command-Vietnam the Meritorious Unit Commendation for service from 1 November 1968 to 30 June 1970.

19.  HQDA published the following GO pertaining to HHC, 1st Brigade, 101st Airborne Division:

* GO Number 59, dated 1968, awarded this unit the Presidential Unit Citation for service from 2 to 20 June 1966
* GO Number 1, dated 1969, awarded this unit the Meritorious Unit Commendation for service from 29 July 1965 to 1 October 1966
* GO Number 21, dated 1969, awarded this unit the Republic of Vietnam Gallantry Cross with Palm Unit Citation for service from 1 to 31 July 1966

DISCUSSION AND CONCLUSIONS:

1.  The criteria for award of the Purple Heart requires the submission of substantiating evidence to verify 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.

2.  With respect to the 11 January 1971 wounding, this injury is neither listed on his DA Form 20 nor in his medical records.  Additionally, the medical document he provides does not show who was injured on that date.  Nevertheless, his name is shown on the Vietnam casualty roster as having been injured as a result of hostile action on that date.  Therefore, he is entitled to award of the Purple Heart and correction of his DD Form 214 to show it.

3.  The evidence of record shows he was awarded the Vietnam Service Medal.  Additionally, records show he participated in eight campaigns while serving in Vietnam.  Therefore, he is entitled to one silver service star and three bronze service stars to be affixed to his Vietnam Service Medal.

4.  General orders awarded the applicant's units of assignment in Vietnam the Presidential Unit Citation, three awards of the Meritorious Unit Commendation, three awards of the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation which are not shown on his records.  Therefore, he is entitled to correction of his records to show these unit awards.

5.  The applicant served on active duty from 19 December 1946 to 11 February 1947.  Therefore, he served a qualifying period of service for award of the World War II Victory Medal and is entitled to correction of his records to show it.

6.  The evidence of record shows he was awarded various awards throughout his military service which are not shown on his retirement DD Form 214 for the period ending on 31 October 1973.  There is no harm to the Army or the Soldier if these awards are added to his final DD Form 214.

7.  With respect to the 6 June 1970 wounding, this injury is neither listed on the Vietnam casualty roster nor is it reflected on his DA Form 20 or in his medical records.  The medical document he provides does not show who was injured on that date.  Additionally, when the applicant completed his retirement physical, he did not list any combat injuries or treatment for any combat injuries.  In the absence of additional documentary evidence that confirms he was wounded on 6 June 1970 and treated for this injury, there is insufficient evidence to support awarding him the Purple Heart in this case.

8.  Notwithstanding the applicant's sincerity, 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 on 6 June 1970, and/or 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 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:

	a.  awarding him the Purple Heart for wounds received in action in Vietnam on 11 January 1971 and

	b.  adding to his DD Form 214 for the period ending on 31 October 1973 the:

* Purple Heart
* World War II Victory Medal
* Vietnam Service Medal with one silver service star and three bronze service stars
* Presidential Unit Citation
* Meritorious Unit Commendation (3rd Award)
* Republic of Vietnam Gallantry Cross with Palm Unit Citation (3rd Award)
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation
* National Defense Service Medal (2nd Award)
* Master Parachutist Badge
* Expert Marksmanship Qualification Badge with Carbine Bar
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-1)


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 a second 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)                                         AR20100022916



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ABCMR Record of Proceedings (cont)                                         AR20100022916



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