IN THE CASE OF:	  

		BOARD DATE:	    13 September 2011

		DOCKET NUMBER:  AR20110003903 


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.  He states he was retired by reason of physical disability due to wounds he sustained during the Vietnam conflict.  He states was awarded the Purple Heart for his wounds; however, it is not reflected on his DD Form 214.

3.  He did not provide any additional documentation. 

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 Untied States on 3 December 1968.  Upon completion of training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  His DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from 13 November 1969 through 21 August 1970.

4.  Item 38 (Record of Assignments) of his DA Form 20 shows he was assigned to:

* Company D, 1st Battalion, 6th Infantry Regiment, 198th Infantry Brigade from 2 December 1969 through 20 August 1970
* the 249th General Hospital, Camp Drake, Japan from 21 August through
1 September 1970, in a patient status
* Walter Reed Army Medical Center, Washington, D.C. on 2 September 1970 in a patient status

5.  Item 40 (Wounds) of his DA Form 20 shows the entry "Lobe Paralysis (L) [left] Side Brain - 14 Aug 70."

6.  Item 41 (Awards and Decorations) of his DA Form 20 shows the:

* National Defense Service Medal (NDSM)
* Vietnam Service Medal (VSM)
* Combat Infantryman Badge (CIB)
* Republic of Vietnam (RVN) Campaign Medal with Device (1960)
* Army Commendation Medal (ARCOM)
* Expert Marksmanship Qualification Badge with Machinegun Bar (M-60)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14)
* Marksman Marksmanship Qualification Badge with Automatic Rifle Bar (M-16)

7.  His record contains a message, dated 15 August 1970 to the Department of the Army Casualty Division.  This document shows the applicant was very seriously wounded on 14 August 1970 from receiving hostile small arms fire.  He sustained a penetrating missile wound to right frontal lobe with paralysis of entire left side and suffered massive brain damage.  He was placed on the very seriously injured list.  His wife and parents were notified.

8.  On 7 December 1970, he was retired by reason of permanent physical disability.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the:


* ARCOM
* NDSM
* RVN Campaign Medal with Device (1960)
* CIB

9.  His name is on the Vietnam casualty listing as having been wounded as a result of hostile action on 14 August 1970.  This entry also shows he was very seriously wounded and hospitalized as a result of his wounds.

10.  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 United States Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant.

11.  His record is void of documentation showing he was recommended for or awarded the first award of the Army Good Conduct Medal (AGCM).  Item 38 of his DA Form 20 shows he received all "excellent" conduct and efficiency ratings throughout his service.  There is no record of a court-martial; however, his record does show he was administered nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice on 18 January 1970 for failing to inspect his platoon’s equipment prior to ambush patrol.  However, on 30 June 1970, the applicant's commander who succeeded in command of the officer who imposed the punishment wholly set aside the punishment and restored all rights, privileges, and property affected.

12.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) provided, in pertinent part, for award of the Purple Heart.  The regulation stated that authority to award the Purple Heart was delegated to hospital commanders.  Further, it directed that all personnel treated and released within 24 hours will be awarded the Purple Heart by the organization to which the individual is assigned.  Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam will be awarded the Purple Heart directly by the hospital commander rendering treatment.

13.  Army Regulation 600-8-22 (Military Awards) states 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.


14.  Army Regulation 672-5-1 (Awards and Decorations), in effect at the time, provided that the AGCM was awarded to individuals who completed a qualifying period of active duty enlisted service.  This period was 3 years, except in those cases when the period for the first award ended with the termination of a period of Federal military service.  The enlisted person must have had all "excellent" conduct and efficiency ratings and no convictions by a court-martial.

15.  Army Regulation 600-8-22 states the Vietnam Service Medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.  It states that a bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.  Appendix B shows that during his service in Vietnam, the applicant participated in the following three campaigns:

* Vietnam Winter - Spring 1970 (1 November 1969 - 30 April 1970)
* Sanctuary Counteroffensive (1 May - 30 June 1970)
* Vietnam Counteroffensive Phase VII (1 July 1970 - 30 June 1971)

16.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam.  This pamphlet shows the 1st Battalion, 6th Infantry, the unit to which the applicant was assigned, was cited for award of the:

* Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 24 August through 31 December 1969 by Department of the Army General Orders (DAGO) Number 42, dated 1972
* Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 31 March through 30 June 1970 by DAGO Number 42, dated 1972

17.  Department of the Army Pamphlet 672-3, paragraph 6 (Miscellaneous Information) states that not more than one award of the Republic of Vietnam Gallantry Cross Unit Citation may be worn by any individual.  Although wear of multiple awards of this unit citation badge is not authorized, official military personnel and historical records will indicate all awards received.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was wounded on 14 August 1970 as a result of hostile action.  His wounds required treatment by medical personnel and the medical treatment was made a matter of official record. 

2.  USARV Regulation 672-1 stated the hospital commander would award the Purple Heart to personnel hospitalized for more than 24 hours.  It appears an administrative oversight occurred which resulted in the Purple Heart not being properly annotated on the applicant's DD Form 214.  Therefore, he is entitled to correction of his DD Form 214 to show this award.

3.  The applicant received all "excellent" conduct and efficiency ratings throughout his service with no record of a court-martial conviction, or a commander's disqualification from being awarded the first award of the AGCM.  His record contains the administration of one Article 15 for a relatively minor offense; however, his overall record of service warrants award of the first award of the AGCM and correction of his DD Form 214 to show this award.

4.  His DA Form 20 shows award the Vietnam Service Medal; however, it was inadvertently omitted from his DD Form 214.  He also participated in three campaign phases during his service in Vietnam.  Therefore, he is entitled to three bronze service stars for wear on his already-awarded Vietnam Service Medal and correction of his DD Form 214 to show the Vietnam Service Medal with three bronze service stars.

5.  His unit in Vietnam was cited for two awards of the RVN Gallantry Cross with Palm Unit Citation.  Although he is only entitled to wear one of these awards, his record should reflect both awards.  Therefore, his DD Form 214 should be corrected to show the RVN Gallantry Cross with Palm Unit Citation (2nd Award).

BOARD VOTE:

___X____  ___X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 Army Good Conduct Medal (1st Award) for the period
3 December 1968 through 7 December 1970; and
	c.  adding to item 24 of his DD Form 214 the:

* Purple Heart
* Army Good Conduct Medal (1st Award)
* Vietnam Service Medal with three bronze service stars
* Republic of Vietnam Gallantry Cross with Palm Unit Citation (2nd Award)



      _______ _   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)                                         AR20110003903



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ABCMR Record of Proceedings (cont)                                         AR20110003903



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