IN THE CASE OF:	  

		BOARD DATE:	  10 May 2011

		DOCKET NUMBER:  AR20100026181 


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. 

2.  He also requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the:

* Expert in lieu of Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Athletic Award for a high score on the Army Physical Fitness Test (APFT)
* Army Good Conduct Medal
* Certificate of Achievement for meritorious performance
* Army Commendation Medal with "V" Device
* Bronze Star Medal (1st Oak Leaf Cluster) and "V" Device

3.  He further requests any unit awards pertaining to his service with:

* B Battery, 2nd Battalion, 40th Artillery
* D Company, 3rd Battalion, 7th Infantry
* Howitzer Battery, 6th Armored Cavalry Regiment (ACR), Fort Meade, MD

4.  He finally requests the issuance of these medals.

5.  The applicant states that the above awards were left off his DD Form 214.  Additionally, he was informed in Vietnam that he would be recommended for the Purple Heart after burning his back, neck, and arms on 31 May 1968.  They had been on operations north and northeast of Long Binh, destroying enemy bunkers when a diesel fuel explosion burned his back, neck, and arms.  He was admitted to and remained at the hospital for 8 days.  

6.  The applicant provides:

* DD Form 214
* Orders awarding him the Army Good Conduct Medal
* Orders and certificates awarding him the Army Commendation Medal with "V" Device, Bronze Star Medal with "V" Device, and Bronze Star Medal (1st Oak Leaf Cluster)
* Department of Veterans Affairs (VA) rating decision
* VA Form 21-2545 (Report of Medical Examination for Disability Evaluation)
* Chronological Records of Medical Care
* Certificate of Achievement

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 was inducted into the Army of the United States on 12 September 1967 and held military occupational specialty 13E (Artillery Intelligence).  He served in Vietnam from 22 March 1968 to 18 March 1969.  He was assigned to B Battery, 2nd Battalion, 40th Artillery.

3.  Subsequent to completing his Vietnam tour, he was reassigned to the Howitzer Battery, 3rd Squadron, 6th ACR, where he remained until he was honorably released from active duty on 24 September 1969 and he was transferred to the U.S. Army Reserve Control Group to complete his remaining service obligation.  


4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the Expert Marksmanship Qualification Badge with Rifle Bar (M-14), National Defense Service Medal, Vietnam Service Medal, Army Commendation Medal, two overseas service bars, and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

5.  Item 29 (Qualification in Arms) of his DA Form 20 (Enlisted Qualification Record) shows he qualified marksman with his M-16 rifle on 17 February 1968.  There is no indication in his records that shows he qualified expert with this weapon.

6.  Special Orders Number 43, issued by Headquarters, U.S. Army Training Center, Field Artillery, Fort Sill, OK, on 19 February 1968, awarded him the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) on 17 February 1968.

7.  Item 38 (Record of Assignments) of his DA Form 20 shows he was assigned to B Battery, 2nd Battalion, 40th Artillery in Vietnam.  There is no indication he was assigned or attached to the 3rd Battalion, 7th Infantry.

8.  Headquarters, 199th Infantry Brigade (Separate) (Light) published the following general orders (GO):

* GO Number 1665, dated 20 December 1965, awarded him the Army Commendation Medal with "V" Device
* GO Number 495, dated 4 April 1969, awarded him the Bronze Star Medal with "V" Device
* GO Number 637, dated 21 April 1969, awarded him the Bronze Star Medal (1st Oak Leaf Cluster)

9.  GO Number 76, issued by Headquarters, 3rd Squadron, 6th ACR, Fort Meade, MD, on 27 August 1969 awarded him the Army Good Conduct Medal (1st Award).

10.  Item 40 (Wounds) of his DA Form 20 does not reflect a combat injury or wound and item 41 (Awards and Decorations) does not list the Purple Heart. 

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

12.  His name is not shown on the Vietnam casualty roster.
13.  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 him.

14.  He submitted:

	a.  VA rating decision, dated 13 August 1970, which shows his records indicated he was treated for second-degree burns of the back, arms, and neck that resulted from a diesel fuel explosion on 31 May 1968.  He was released to light duty on 4 June 1968.  

	b.  VA Form 2545, dated 5 January 1970, which shows he suffered burns to his back, neck, and shoulders from a diesel fuel explosion in Vietnam and he was hospitalized for 8 days 

	c.  Chronological record of medical care, dated 31 May 1968, which shows he was burned on the back, neck, and shoulder from a diesel fuel explosion.  He was treated at the 199th Infantry Brigade ward.

15.  Army Regulation 600-8-22 (Military Awards) provides for award of the Purple Heart.  The Purple Heat 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.  The Purple Heart may also be awarded 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 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.

	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.

16.  He also provides a certificate of achievement, dated 16 February 1969, wherein he was commended for meritorious performance of duty and contribution to his unit.

17.  GO Number 51, dated 1971, awarded the 2nd Battalion, 40th Field Artillery, the Republic of Vietnam Gallantry Cross with Palm Unit Citation for service from 19 June 1968 to 31 July 1970 and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for service from 12 December 1966 to 31 August 1970.

18.  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.  A silver service star denotes five bronze service stars.  Appendix B shows that during his service in Vietnam, the FSM participated in the following campaigns:

* 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 Counteroffensive, Phase VI, 2 November 1968 to 22 February 1969
* TET 69 Counteroffensive, 23 February to 8 June 1969.

19.  Army Regulation 600-8-22 provides for basic marksmanship qualification badges.  The qualification badge is awarded to indicate the degree – Expert, Sharpshooter, and Marksman -- in which an individual has qualified in a prescribed record course.  An appropriate bar is furnished to denote each weapon with which the individual has qualified.  The qualification should be shown as:  Expert Marksmanship Qualification Badge with Rifle Bar or Marksman Marksmanship Qualification Badge with Automatic Rifle Bar or Sharpshooter Marksmanship Qualification Badge with Pistol Bar.

	a.  Paragraph 1-31c(11) states an award for previous marksmanship weapons qualification is revoked automatically whenever an individual, upon completion of firing a record course for which the previous award was made, has not attained the same qualification.  In the event a badge is authorized for firing a limited or sub-caliber course, it is automatically revoked if a record service course is subsequently fired.

	b.  Department of the Army Pamphlet 350-38 (Standards in Training Commission) provides commanders with the training strategies for individual, crew, and collective weapons training.  The pamphlet is structured by unit type (e.g., Armor, Infantry, Military Police, etc.) instead of by weapon type; however, the basic requirements call for annual (or sooner) qualification with individual weapons.  This means, in effect, the most recent qualification score with a particular weapon denotes the degree of marksmanship badge the Soldier is eligible to wear.

DISCUSSION AND CONCLUSIONS:

1.  General orders awarded the applicant the Army Good Conduct Medal and two awards of the Bronze Star Medal, one of which was with a "V" Device.  None of these awards are shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show these awards. 

2.  General orders awarded the applicant the Army Commendation Medal with "V" Device.  His DD Form 214 listed the Army Commendation Medal but inadvertently omitted the "V" Device.  Therefore, he is entitled to correction of his DD Form 214 to show this award.  

3.  General orders awarded his unit (2nd Battalion, 40th Artillery) the Republic of Vietnam Gallantry Cross with Palm Unit Citation and 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. 

4.  The evidence of record shows he was awarded the Vietnam Service Medal.  Additionally, records show he participated in five campaigns while serving in Vietnam.  Therefore, he is entitled to a silver service star to be affixed to his Vietnam Service Medal.

5.  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 sole justification for the award.  

6.  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. 

7.  In this case, the evidence of record shows he suffered burns to his back, neck, and shoulder due to diesel fuel explosion.  However, there is no evidence the explosion was caused by the enemy.  His name is not shown on the Vietnam casualty roster, and the available medical records do not reflect a combat wound/injury or treatment for a combat wound/injury.  Nowhere on his medical records is there an indication that the explosion resulted from enemy action/fire. 

8.  The Purple Heart may also be awarded 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.  The applicant's injury appears to have resulted from an accident rather than enemy action or friendly fire.  Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; except when in the heat of battle and not involving gross negligence; are disqualified from award of the Purple Heart.

9.  Notwithstanding the applicant's sincerity, in the absence of official documentary evidence such as operation orders, morning reports, after action reports, official orders to corroborate the events that led to his injury, or additional documentation that conclusively shows he was wounded or injured as a result of hostile action or in the heat of battle there is insufficient evidence upon which to award him the Purple Heart in this case.

10.  With respect to the certificate of achievement, commanders may recognize acts, achievements, or periods of faithful service or special acts which do not meet the standards required for decorations by issuing a DA Form 2442 (Certificate of Achievement) or a certificate of achievement or commendation of local design.  Although copies of certificates of achievement or commendation will be filed in the official military personnel file, there is no distinguishing device authorized for wear to indicate the receipt of a certificate of achievement or commendation and there is no provision to list such certificates on the DD Form 214.

11.  With respect to the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), the evidence of record shows he qualified marksman with the M-16 rifle. There is no evidence he fired expert with this weapon.  In the absence of additional documentary evidence that confirms his qualification, such as an official order, memorandum, endorsement, or an entry on his DA Form 20, he is not entitled to the expert badge. 

12.  With respect to unit awards pertaining to the 3rd Battalion, 7th Infantry, there is no evidence the applicant was assigned or attached to this unit during his service in Vietnam.

13.  With respect to the unit awards pertaining to the 3rd Squadron, 6th ACR, there is no indication this unit was awarded any unit awards during his assignment to this unit.

14.  With respect to any recognition for his high APPT score, there is no evidence in his records and he did not provide any evidence that confirms he was awarded any awards pertaining to this issue.  But even if he did, there is no provision to list a high APFT score on the DD Form 214.

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 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: 

* deleting from item 24 of his DD Form 214 the Army Commendation Medal and the Vietnam Service Medal
* adding to his DD Form 214 and issuing him the:

* Bronze Star Medal (2nd Award) and "V" Device
* Army Commendation Medal with "V" Device
* Army Good Conduct Medal (1st Award)
* Vietnam Service Medal with a silver service star
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Republic of Vietnam Civil Actions Honor Medal First Class 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 the:
* Purple Heart 
* Certificate of Achievement
* Expert in lieu of Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Athletic Award for a high score on the APFT
* Any additional unit awards pertaining to D Company, 3rd Battalion, 
7th Infantry and/or Howitzer Battery, 6th Armored Cavalry Regiment



      _______ _   _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)                                         AR20100026181



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ABCMR Record of Proceedings (cont)                                         AR20100026181



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