IN THE CASE OF:	  

		BOARD DATE:	  8 November 2011

		DOCKET NUMBER:  AR20110008044 


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.  The applicant states he was 18 years old when he was wounded in Quang Tri, Republic of Vietnam (RVN), in January or February of 1970.  He contends he was never told why he did not receive a Purple Heart while he was hospitalized in Da Nang and no one ever came to see him.  He further contends his injury was not caused by friendly fire.

3.  The applicant provides no 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 enlisted in the Regular Army on 29 May 1968 for a period of
3 years.  He completed training and he was awarded military occupational specialty 63C (Track Vehicle Mechanic).

3.  The applicant was assigned in the RVN during the period 13 January to
14 February 1970.  During this overseas tour he was assigned to:

	a.  Headquarters & Main Support Company, 63rd Maintenance Battalion, from 22 January to 28 January 1970; and

	b.  106th General Hospital, Yokohama, Japan, in a patient status from
29 January to 14 February 1970.

4.  On 14 February 1970, the applicant departed the 106th General Hospital in a patient status en route to the Medical Holding Company, Valley Forge General Hospital, Phoenixville, PA for further treatment.

5.  The applicant's record contains a casualty message, dated 24 January 1970.  The message states the applicant was not seriously wounded in the right knee by a gunshot on 23 January 1970 at 2030 hours when he was mistaken for a hostile force.

6.  A Western Union telegram sent by The Adjutant General, Department of the Army, informed the applicant's parents that he was slightly wounded in action in the RVN on 23 January 1970.  The telegram further stated the applicant was slightly wounded in the right knee by small arms fire while at the base camp perimeter when mistaken for a hostile force.

7.  His record contains a Standard Forms 502 (Clinical Record – Narrative Summary), dated 25 January and 5 February 1970, that shows:

* he received an accidental gunshot wound to his right thigh by an M-16 tracer round at 210 meters
* he allegedly was shot by mistake by his company commander while setting trip flares in front of the company lines

8.  On 19 May 1971, he was honorably released from active duty as an overseas returnee.  He had completed 2 years, 11 months, and 21 days of total active service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and 


Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued at the time shows the:

* Army Commendation Medal
* National Defense Service Medal
* Vietnam Service Medal
* Expert Marksmanship Qualification Badge with Rifle Bar (M-14)
* Marksman Marksmanship Qualification Badge with Automatic Rifle Bar (M-16)

9.  Review of The Adjutant General's Office, Casualty Division's Vietnam casualty listing shows the applicant's name is listed as a casualty on 23 January 1970 under casualty status code "23."  This casualty code refers to "hostile wounded in action, not serious, hospitalized."

10.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), 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 pertaining to the applicant.

11.  General Orders Number 301, issued by Headquarters, 8th Infantry Division, dated 19 April 1971, awarded the applicant the Army Good Conduct Medal for the period 29 May 1968 to DOSOA (date of separation on or about) 28 May 1971.

12.  Included as part of the Department of Defense Appropriations Act for fiscal year 1994 was an amendment to the rules governing award of the Purple Heart.  While the original rules established that the Purple Heart would be awarded to individuals killed or wounded as a result of hostile action the amendment enabled the Secretaries of each department to award the Purple Heart to members of the armed forces who were killed or wounded in action by weapons fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States.  This ruling granted the Service Secretaries the authority to award the Purple Heart to individuals directly engaged in armed conflict who were killed or wounded as a result of "friendly fire."

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

	a.  the Purple Heart is 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.
	b.  paragraph 2-13, contains the regulatory guidance on the Vietnam Service Medal.  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 Vietnam Winter - Spring 1970 (1 November 1969 - 30 April 1970) campaign.

14.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) states that Department of the Army General Orders Number 8, dated 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Army Vietnam, and its subordinate units, during the period 20 July 1965 to 28 March 1973.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests award of the Purple Heart and correction of his
DD Form 214 to show this award.

2.  Although the applicant contends his injury was not caused by friendly fire, the evidence of record contains a casualty report and a Western Union Telegram which report he was injured while serving in the RVN when he was mistaken for a hostile force.  Specifically, he was shot by his company commander while setting flares along the base camp perimeter.  The circumstances of his injury are further confirmed by medical records.  His name appears on the Vietnam casualty listing with a casualty status code of 23, relating to "hostile wounded in action, not serious, hospitalized."  Based on a preponderance of the evidence, the applicant meets the criteria for the award of the Purple Heart.  Therefore, he is entitled to correction of his DD Form 214 to show this award.

3.  General orders awarded him the Army Good Conduct Medal (1st award).  Therefore, his DD Form 214 should be corrected to show this award.

4.  The applicant participated in one campaign phase during his service in the RVN.  Therefore, he is entitled to one bronze service star for wear on his already-awarded Vietnam Service Medal and correction of his DD Form 214 to show this bronze service star.

5.  All units in the RVN were cited for award of the RVN Gallantry Cross with Palm Unit Citation during his period of service in Vietnam.  Therefore, he is entitled to correction of his DD Form 214 to show this unit 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.  deleting from item 24 of his DD Form 214 the Vietnam Service Medal;

	b.  awarding him the Purple Heart for wounds received in action on
23 January 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 one bronze service star
* Republic of Vietnam Gallantry Cross with Palm Unit Citation




      ____________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)                                         AR20110008044



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110008044



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1