IN THE CASE OF:	  

		BOARD DATE:	  8 September 2011

		DOCKET NUMBER:  AR20110004181 


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 that the records of his deceased brother, a former service member (FSM), be corrected to reflect his award of the Purple Heart.  

2.  The applicant states that his brother received the award of the Purple Heart for the loss of his leg in Vietnam; however, it was not recorded on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

3.  The applicant provides a copy of the FSM’s DD Form 214, his death certificate, and a copy of a clinical record regarding his being wounded in Vietnam.

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 FSM was inducted in Cleveland, Ohio on 10 December 1968.  He completed his basic training at Fort Knox, Kentucky and his advanced individual training as a light weapons infantryman at Fort Polk, Louisiana before being transferred to Vietnam on 21 May 1969 for assignment to Company B, 1st Battalion, 506th Infantry Regiment as a rifleman.

3.  On 3 February 1970, after serving in three campaigns, the FSM was injured when he was hit by enemy booby trap fragments while on patrol and suffered fragmentation wounds to both lower extremities, a fracture of middle third left femur and right tibia plateau, and partial traumatic amputation of the left leg below the knee.  He was evacuated to the 106th General Hospital in Japan on 
15 February 1970.  On 28 February 1970, he was transferred to Walter Reed General Hospital in Washington, D.C. 

4.  On 22 December 1970, he was retired and transferred to the Temporary Disability Retired List (TDRL) with a 60% disability rating.  His DD Form 214 issued at the time of his retirement shows that he was awarded the Air Medal with oak leaf cluster, the Army Commendation Medal, the National Defense Service Medal, the Vietnam Service Medal (VSM), the Republic of Vietnam Campaign Medal with Device 1960, and the Combat Infantryman Badge.  He had served 2 years and 13 days of active service.

5.  The FSM was removed from the TDRL on 30 November 1972 and was permanently retired on 1 December 1972 in the rank of sergeant.

6.  A review of his official records failed to reveal orders awarding the FSM the Purple Heart.  However, his records show that he was awarded the third award of the Air Medal.  His records also show that he had "excellent" conduct and efficiency ratings throughout his service and his record is void of any derogatory information that would serve to disqualify him for award of the Army Good Conduct Medal (AGCM).

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

8.  Army Regulation 600-8-22 states the AGCM is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  Although there is no automatic entitlement to the AGCM, disqualification must be justified. 
 
9.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) was published to assist commanders and personnel officers in determining or establishing the eligibility of Soldiers for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It shows that the FSM's unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation during the period he served with the units.    

10.  Army Regulation 600-8-22 states a bronze service star, based on qualifying service for each campaign listed in appendix B will be worn on the appropriate service medal.
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the FSM was awarded the Purple Heart for wounds received in Vietnam has been noted and found to have merit.  Although there are no orders present in the available records, the evidence of record clearly establishes that he was entitled to award of the Purple Heart and therefore it is reasonable to presume that he was in fact awarded the Purple Heart and the orders simply did not make it to his records.  Accordingly, the award of the Purple Heart should be added to his DD Form 214 at this time. 

2.  The FSM was also awarded the Air Medal (3d award) and that award should also be reflected on his DD Form 214. 

3.  The FSM served in three campaigns and thus is entitled to wear three bronze service stars on his VSM.  Accordingly, they should be added to his DD Form 214 at this time.

4.  After carefully examining the FSM’s record of service, it appears that the FSM should have received the first award of the AGCM for his service from 
10 December 1968 through 22 December 1970.  This conclusion is based on the fact that the record is void of any derogatory information which would preclude the FSM from being awarded the AGCM and the lack of any specific action by the FSM’s unit commander to disqualify him from receiving this award.

5.  The evidence suggests that the FSM not receiving the AGCM was likely the result of an administrative error as opposed to it being the result of a conscious disqualification by any of his unit commanders.  Therefore, in the interest of justice, this error should be corrected and the FSM should be awarded the AGCM at this time. 

6.  Additionally, the FSM’s unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation during the period he served with the unit.  Accordingly, he is entitled to have those awards added to his DD Form 214 at this time.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* Deleting the award of the Air Medal with oak leaf cluster from his DD Form 214
* Adding award of the Air Medal (3d award) to his DD Form 214
* Deleting the award of the VSM from his DD Form 214
* Adding the award of the VSM with three bronze service stars
* Awarding him the AGCM for the period 10 December 1968 through 
22 December 1970, while serving in the rank of sergeant (SGT), and adding it to his DD Form 214
* Adding the Purple Heart, Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation to his DD Form 214 


      _______ _   _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)                                         AR20110004181





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ABCMR Record of Proceedings (cont)                                         AR20110004181



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