IN THE CASE OF:	  

		BOARD DATE:	    29 September 2011

		DOCKET NUMBER:  AR20110005636 


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 records to show award of the Purple Heart, Combat Infantryman Badge, and Valorous Unit Award.

2.  The applicant states he was assigned to B Troop, 2nd Squadron, 7th Cavalry, 1st Cavalry Division in the Republic of Vietnam (RVN) from 4 March through
21 May 1970.  According to the Department of Veterans Affairs (VA), Beneficiary Identification Records Locator Subsystem (BIRLS), he is a recipient of the Purple Heart.  He injured his left knee while participating in "Operation Rock Crusher" with the 1st Army of the Republic of Vietnam (ARVN) Airborne Division when they entered the "Fish Hook," a known North Vietnamese Army (NVA)/Viet Cong 
(VC) supply and staging area.

3.  The applicant provides copies of his DD Form 214 (Report of Separation from Active Duty), a medical record, combat certificate, VA BIRLS record, and 4 pages from the Veterans of Foreign Wars (VFW) magazine (May 2010 edition).

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 enlisted in the Army National Guard of the United States (ARNGUS) and Army National Guard of New Mexico (NMARNG) on 8 March 1965.

3.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was ordered to active duty for training (ADT) on 28 March 1965, honorably released from ADT on 14 August 1965, and transferred to the NMARNG.  He completed 4 months and 17 days of active service this period.

   a.  Item 25a (Specialty Number and Title) shows he was awarded military occupational specialty (MOS) 13F (Automatic Weapons Crewman).

   b.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  The applicant was honorably discharged from the ARNGUS and NMARNG on 25 February 1968.

5.  A DD Form 214 shows the applicant enlisted in the Regular Army (RA) for a period of 3 years on 26 February 1968 and he was honorably discharged on
27 October 1968 to reenlist in the RA.  He completed 8 months and 2 days of active service this period.

   a.  Item 23a (Specialty Number and Title) shows he was awarded MOS 13E (Field Artillery Operations and Intelligence Assistant).

   b.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the National Defense Service Medal.

6.  The applicant reenlisted in the RA for a period of 6 years on 28 October 1968.

7.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

	a.  item 31 (Foreign Service) he served in the RVN from 4 March through
20 May 1970;

   b.  item 38 (Record of Assignments):

	    (1)  he served in duty MOS 13E4O as a reconnaissance sergeant while assigned to Headquarters and Headquarters Battery (HHB), 2nd Battalion,
19th Artillery, 1st Cavalry Division (Airmobile), from 14 March to 21 May 1970, and

	    (2)  he was a patient at the U.S. Army Hospital, Camp Zama, Japan from
22 May through 29 May 1970;

	c.  item 39 (Campaigns) he participated in the Vietnam Winter-Spring 1969 and DA Sanctuary Counteroffensive campaigns;

   d.  item 40 (Wounds), no entry (is blank); and

	e.  item 41 (Awards and Decorations) that he was awarded or authorized the National Defense Service Medal, Republic of Vietnam Campaign Medal, Vietnam Service Medal, and Good Conduct Medal (2nd Award).

8.  A Standard Form 88 (Report of Medical Examination), dated 24 September 1974, conducted for the purpose of the applicant's separation from the RA, does not show any evidence of the applicant having had a wound or injury to his left knee or any part of his lower extremities.

9.  A DD Form 214 shows the applicant entered active duty this period on
28 October 1968 and he was honorably discharged on 25 October 1974.  He completed 5 years, 11 months, and 28 days of net active service this period.

	a.  Item 16a (Primary Specialty Number and Title) and item 27 (Remarks) show he was awarded MOS 13E4O (Field Artillery Operations and Intelligence Assistant) on 19 May 1969.

	b.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows the National Defense Service Medal, Good Conduct Medal (2nd Award), Vietnam Service Medal, Republic of Vietnam Campaign Medal, and Expert  Marksmanship Qualification Badge with Rifle (M-16) Bar.

10.  In support of his application, the applicant provides the following documents.

   a.  A medical record completed on 17 August 1970 that shows the applicant complained of a dislocation of the left patella.  It also shows:

       (1)  "Present Illness:  This 24 year old active duty E5 jumped from a helicopter in Cambodia on 17 May 1970 and injured his left knee.  His patella was dislocated.  He was treated in the Far East with a cylinder cast and subsequently received at William Beaumont General Hospital [El Paso, Texas] by air evacuation.  The patient initially walked 800 years after his injury, but after this was unable to walk."

       (2)  "Final Diagnosis:  Dislocation of left patella, laterally (AI [Accidentally Incurred] when patient jumped from helicopter in Cambodia on 17 May 1970)."

   b.  1st Cavalry Division (Airmobile), Vietnam Combat Certificate, that shows the applicant served with B Troop, 2nd Squadron, 7th Cavalry, 1st Cavalry Division (Airmobile) in the RVN from 4 March to 21 May 1970.  It also shows the division was awarded the Presidential Unit Citation for actions in late 1965.

   c.  VA BIRLS record that shows the applicant completed 7 years and 17 days of total active service.  It also shows for "Vietnam Service" the entry "Y" [Yes] and for "Purple Heart" there is no entry.

   d.  Extracts (4 pages) from the article "Answer to a Soldier's Prayer - Sacking NVA Sanctuaries in Cambodia, 1970," VFW, May 2010 edition.  It describes the limited incursion into Cambodia by the 1st Cavalry Division and 1st ARVN Airborne Division in the spring of 1970.  It was designated "Operation Toan Thang #43 (Total Victory) and shows they entered the Fish Hook, a known NVA/VC supply and staging area.  It also shows the 1st Cavalry Division was awarded the Valorous Unit Award for the operation.  There is no mention of the applicant's name in the article.
   
11.  A review of the applicant's military personnel records failed to reveal any evidence he was authorized or awarded the Purple Heart or the Combat Infantryman Badge.

12.  A review of the Vietnam casualty listing does not contain the applicant's name.

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 orders for the Purple Heart pertaining to the applicant.

14.  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.  This pamphlet shows that at the time of the applicant's assignment to HHB, 2nd Battalion, 19th Artillery, 1st Cavalry Division (Airmobile), the battalion was awarded the:

* Valorous Unit Award by Department of the Army General Orders (DAGO) Number 43 (1972)
* Republic of Vietnam Gallantry Cross with Palm Unit Citation by DAGO Number 42 (1972)

15.  A review of the applicant's military personnel records reveals he may be authorized additional awards that are not shown on his DD Form 214.

16.  The applicant's DA Form 20 shows he qualified for and was awarded the Vietnam Service Medal, but his DD Form 214 does not show he was awarded any bronze service stars to signify campaign participation credit.

17.  Paragraph 2-13 of Army Regulation 600-8-22 (Military Awards) contains the regulatory guidance for the Vietnam Service Medal.  It states that one bronze service star is authorized with this service medal for each Vietnam campaign a member is credited with participating in.

18.  Table B-1 of Army Regulation 600-8-22 contains a list of Vietnam Conflict campaigns and shows that during the applicant's service in Vietnam, participation credit was awarded for the following two campaigns:

* Vietnam Winter-Spring 1970 (1 November 1969 - 30 April 1970)
* DA Sanctuary Counteroffensive (1 May - 30 June 1970)

19.  Army Regulation 600-8-22 provides the policy, criteria, and administrative instructions concerning military awards and decorations.

   a.  The Purple Heart is awarded to any member who has been wounded or killed in action.  A wound is an injury to any part of the body from an outside force or agent sustained as a result of hostile action.  In order to support awarding a service member the Purple Heart, it is necessary to establish that the wound for which the award is being made required treatment by medical personnel.  This treatment must be supported by records of medical treatment for the wound or injury received in action, and must have been made a matter of official record at the time.

       (1)  It states that when contemplating an award of the Purple Heart the key issue commanders must take into consideration is the degree to which the enemy caused the injury.

       (2)  It also provides examples of injuries or wounds which clearly do not justify award of the Purple Heart and lists accidental wounds or injuries not related to or caused by enemy action and jump injuries not caused by enemy action.

   b.  There are basically three requirements for award of the Combat Infantryman Badge.  The Soldier must be an infantryman satisfactorily performing infantry duties; he must be assigned or attached to an infantry unit of brigade, regimental, or smaller size during such time as the unit is engaged in active ground combat; and he must actively participate in such ground combat.  More specifically, a recipient must be personally present and under hostile fire while serving in an assigned infantry primary duty, in a unit actively engaged in ground combat with the enemy.

20.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states that awards and decorations for all periods of service will be entered on the DD Form 214 in the priority sequence specified in Army Regulation 600-8-22.  Each entry will be verified by the Soldier's records.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show award of the Purple Heart, Combat Infantryman Badge, and Valorous Unit Award.

2.  The applicant's claim to the Purple Heart was carefully considered.

   a.  Item 40 of the applicant's DA Form 20 does not show he was wounded or injured in action, the applicant's name is not listed on the Vietnam casualty listing, and there is no evidence the applicant was awarded the Purple Heart.

   b.  The medical record the applicant provides show he accidentally injured his left knee on 17 May 1970 when he jumped from a helicopter in Cambodia.

   c.  There is no evidence the applicant's injury was a result of enemy action.

   d.  Despite the applicant's contention, the VA BIRLS record does not indicate he received the Purple Heart.

3.  The sincerity of the applicant's claim is not in question.  However, in order to support awarding a member the Purple Heart, it is necessary to establish the wound for which the award is being made was sustained in action in the face of the armed enemy or as a result of a hostile act of such enemy [emphasis added], the wound required treatment by medical personnel, and the medical treatment for the wound or injury must have been made a matter of official record.  The evidence of record fails to satisfy the criteria.  Therefore, the applicant is not entitled to the Purple Heart.

4.  Records show the applicant was awarded MOS 13E and he served as a reconnaissance sergeant with HHB, 2nd Battalion, 19th Artillery, 1st Cavalry Division (Airmobile) during his tour of duty in Vietnam.

   a.  There is no evidence he was awarded an infantry MOS or that he served in an infantry MOS.

   b.  There are no orders or other evidence in the applicant's military personnel records that shows he was awarded the Combat Infantryman Badge.

   c.  Therefore, the available evidence is insufficient to support the applicant's claim to the Combat Infantryman Badge.

5.  General orders awarded the applicant's unit the Valorous Unit Award and Republic of Vietnam Gallantry Cross with Palm Unit Citation.

6.  Records show the applicant participated in two campaigns during his service in the RVN.  Therefore, he is entitled to two bronze service stars for wear on his already-awarded Vietnam Service Medal.

7.  In view of the foregoing, it would be appropriate to correct the applicant's DD Form 214 to show his awards and decorations as recommended below.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

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

   a.  deleting from item 26 of his 25 October 1974 DD Form 214 the Vietnam Service Medal, and

   b.  adding to item 26 of his 25 October 1974 DD Form 214 the:

* Vietnam Service Medal with 2 bronze service stars
* Valorous Unit Award
* Republic of Vietnam Gallantry Cross with Palm Unit Citation

2.  The Board further determined that 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 and Combat Infantryman Badge.  



      _______ _   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)                                         AR20110005636



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110005636



8


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1