IN THE CASE OF:	  

		BOARD DATE:	  17 May 2011

		DOCKET NUMBER:  AR20100027226 


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 his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Purple Heart.

2.  The applicant states he was awarded the Purple Heart for shell fragment wounds he received to his left buttock, right lower leg, and posterior calf during his service in Vietnam in 1969. 

3.  The applicant provides:

* DD Form 214
* Letter from the Department of Veterans Affairs (VA)
* An extract of his VA rating decision
* Service immunization records
* Statement of Medical Condition
* Induction and Separation Reports of Medical History and Examinations
* Service medical records, including consults, chronological records of medical care, narrative summary, and other medical documents
* DD Form 1380 (U.S. Field Medical Card)
* Service dental records

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests correction of the applicant's DD Form 214 to show award of the Purple Heart.
2.  Counsel states that the applicant asserts he was in fact awarded this medal while serving in Vietnam due to shrapnel wounds as indicated on his service treatment records; however, it was not annotated on his DD Form 214 upon separation and he has since lost the original citation and orders for this medal. 

3.  Counsel did not submit additional evidence.

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 10 December 1968 and held military occupational specialty 11B (Light Weapons Infantryman).  He served in Vietnam from 21 May 1969 to 16 April 1970.  He was assigned to Company B, 3rd Battalion, 60th Infantry, from 31 May to 21 June 1969 and Company C, 3rd Battalion, 60th Infantry, from 21 June 1969 to 12 April 1970.

3.  He was honorably released from active duty on 9 December 1970 in the rank/grade of specialist four (SP4)/E-4 and transferred to the U.S. Army Reserve Control Group (Annual Training) 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:

* National Defense Service Medal
* Combat Infantryman Badge
* Army Commendation Medal
* Air Medal
* Good Conduct Medal
* One overseas service bar
* Vietnam Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14)
* Vietnam Campaign Medal with "1960" Device
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)

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

6.  His records do not contain general orders which authorized him award of the Purple Heart; his name is not shown on the Vietnam casualty roster; and his service medical records are not available for review with this case.

7.  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 orders for the Purple Heart for him. 

8.  He submitted his service dental and immunization records as well as:

	a.  an extract of his VA rating decision (undated) which shows the entry "Your service treatment records were reviewed.  Records do not show you received a wound to your back.  Records show a shell fragment wound to left buttock, right lower leg, and posterior calf, in which you are service-connected for at an evaluation of 0% disabling for each scar since December 10, 1970."  Also, "Our VCAA (Veterans Claims Assistance Act) letters dated October 9, 2009, and December 16, 2009, asked you to submit evidence showing that this condition has existed from time of your military service to the present.  To date, no evidence has been received." 

	b.  statement of medical condition, dated 7 December 1970 wherein he indicated that "there has been no change in my medical condition."

	c.  various medical records, consultation sheets, narrative summary, and other medical documents, dated August 1970, that show he was diagnosed with Left Bell's Palsy, facial nerve.  He was seen and/or treated on multiple occasions. This condition is also listed on his separation reports of medical history and medical examination, dated 17 September 1970. 

	d.  DD Form 1380, dated 3 August 1969, which shows he was wounded on 1 August 1969 as a result of enemy action while on patrol with his unit.  He suffered a penetrating fragment wound to the left buttocks.  He received treatment at the battalion aid station where the medics cleansed and dressed his wound.

	e.  Chronological record of medical care, dated 3 August 1969, that shows he had a small piece of shrapnel in the left side of his buttocks and possible shrapnel in the lower thigh.  The shrapnel was removed at the battalion aid station.

9.  Army Regulation 600-8-22 (Military Awards) provides that 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.

10.  A review of the applicant's records indicates entitlement to additional awards and decorations that are not shown on his DD Form 214.

11.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows, during its service in Vietnam, the 3rd Battalion, 60th Infantry, was awarded the:

* Republic of Vietnam Gallantry Cross with Palm Unit Citation, for service from 1 January to 30 June 1969, based on Department of the Army General Orders Number 59, dated 1969
* Republic of Vietnam Civil Actions Honor Medal, First Class Unit Citation, for service from 19 December 1966 to 28 June 1969, based on Department of the Army General Orders Number 59, dated 1969

12.  Appendix B of Army Regulation 600-8-22 shows during his service in Vietnam participation credit was awarded for the below 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:

* Tet 69 Counteroffensive; 23 February 1969 to 8 June 1969 
* Vietnam Summer - Fall 1969; 9 June to 31 October 1969
* Vietnam Winter - Spring 1969, 1 November 1969 to 30 April 1970

13.  Army Regulation 670-1 (Uniforms and Insignia) governs the requirements for the Overseas Service Bar.  It states a bar is authorized for wear for each period of active Federal service as a member of the U.S. Army outside of the continental limits of the United States for the specific time frames and areas of operation cited in Army Regulation 670-1 or appropriate Department of the Army message. There are special provisions regarding authorization for the Overseas Service Bar for service in a hostile fire zone and for combining service to calculate award of the bars.  For Vietnam service, one overseas service bar was authorized for each period of 6 months active Federal service as a member of a U.S. Service in Vietnam from 1 July 1958 to 28 March 1973.  Both the month of arrival and the month of departure from Vietnam were counted as whole months for credit toward the overseas service bar.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was wounded on 1 August 1969 as a result of enemy action while on patrol with his unit.  He suffered a penetrating fragment wound to the left buttocks.  He received treatment at the battalion aid station where the medics cleansed and dressed his wound.  Therefore, he is entitled to award of the Purple Heart and correction of his DD Form 214 to show it.

2.  General orders awarded his unit 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.

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

4.  The applicant served in Vietnam from 21 May 1969 to 16 April 1970.  Therefore, he served a qualifying period of service for two overseas service bars. His DD Form 214 inadvertently listed only one bar.  Therefore, he is entitled to correction of his DD Form 214 to show two bars. 

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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:

* awarding the applicant the Purple Heart for wounds received in action on 1 August 1969 in Vietnam
* deleting from item 24 of his DD Form 214 the entry "one overseas bar"
* adding to his DD Form 214:

* Purple Heart
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation
* Two overseas service bars
* Three bronze service stars to be affixed to his already-awarded Vietnam Service Medal



      ___________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)                                         AR20100027226



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ABCMR Record of Proceedings (cont)                                         AR20100027226



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