IN THE CASE OF:	  

		BOARD DATE:	  15 November 20011

		DOCKET NUMBER:  AR20110010388 


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 in Vietnam and he feels it should be listed on his DD Form 214.

3.  The applicant provides

* DD Form 214 for the period ending on 7 August 1969
* Page 3 of his 4-page DA Form 20 (Enlisted Qualification Record)
* Letter denying him Combat-Related Special Compensation Pay

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 the United States on 9 October 1967 and he held military occupational specialty (MOS) 11B (Light Weapons Infantryman).  

3.  He arrived in Vietnam on or about 24 July 1968.  He was assigned as follows:

* Company A, 1st Battalion, 12th Cavalry from on or about 28 July 1968 to on or about to 24 October 1968
* Headquarters and Headquarters Company, 1st Cavalry Division, from on or about 24 October 1968 to on or about 26 November 1968
* He departed in a patient status on 26 November 1968 and assigned to the 249th General Hospital

4.  On 26 February 1969, he was issued a temporary physical profile for left shoulder pain and degenerative joint arthritis.  

5.  On 27 March 1969, he waived his right to appear before a reclassification board due to his inability to perform in his primary MOS.  He was awarded MOS 64A (Light Vehicle Driver).

6.  He was honorably discharged on 7 August 1969 for the purpose of immediate enlistment.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 for this period of service shows the:

* National Defense Service Medal
* Republic of Vietnam Campaign Medal
* Vietnam Service Medal
* Expert Marksmanship Qualification Badge with Rifle Bar (M-14)
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Marksman Marksmanship Qualification Badge with Machinegun Bar      (M-60)

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

8.  His records do not contain general orders authorizing him award of the Purple Heart and his name is not shown on the Vietnam casualty roster.

9.  He reenlisted in the Regular Army on 8 August 1969 and he was assigned to Fort Carson, CO.

10.  On 11 May 1970, he underwent a physical examination.  His Narrative Summary (NARSUM) shows in the "Past History" block the entry "While in RVN (Republic of Vietnam), the patient sustained a bullet wound through his right leg associated with a fall on the left shoulder."  Additionally, the "Present History" block shows the entry "Since 1965, the patient had complained of pain in the left shoulder.  This was markedly aggravated by a fall on the left shoulder subsequent to a bullet wound injury involving the right and left lower legs while engaged in combat in RVN.  He was treated subsequently in succession at the 18th Surgical Hospital, 95th Evacuation Hospital, and the 6th Convalescent Center in RVN by means of physical therapy, injections, and…." 

11.  He was considered by a medical evaluation board that referred him to a physical evaluation board (PEB).  The PEB ordered placing him on the temporary disability retired list (TDRL) by reason of temporary disability.  

12.  He was honorably retired on 3 November 1970 and placed on the TDRL the next day.  His DD Form 214 for this period of service shows the:

* National Defense Service Medal
* Republic of Vietnam Campaign Medal
* One overseas service bar
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Vietnam Service Medal
* Good Conduct Medal

13.  A review of the Awards and Decorations Computer Assisted Retrieval System maintained by the Military Awards Branch of the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders for the Purple Heart pertaining to him.

14.  He submitted a letter, dated 9 February 2009, denying him CRSC for a scar to the right lower leg.

15.  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.
16.  A review of the applicant's records indicates his entitlement to additional awards which are not shown on his DD Form 214.

17.  Appendix B of Army Regulation 600-8-22 shows that during his tour of duty in Vietnam from 24 July 1968 to 11 April 1969, campaign 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.

* Vietnam Counteroffensive Phase V (1 July to 1 November 1968)
* Vietnam Counteroffensive Phase VI (2 November 1968 to 22 February 1969)
* Tet 69 Counteroffensive 1969 (23 February to 8 June 1969)

DISCUSSION AND CONCLUSIONS:

1.  The applicant's official service records do not contain evidence that shows he was wounded or injured as a result of enemy action.  Nevertheless, his records contain a NARSUM that shows:

	a.  In the past history block, he sustained a bullet wound through his right leg associated with a fall on the left shoulder.  This entry suggests that his bullet wound may have been accidental.  

	b.  In the present illness block, his left shoulder injury was markedly aggravated by a fall on the left shoulder subsequent to a bullet wound injury involving the right and left lower legs while engaged in combat in Vietnam.  This entry does not conclusively show his wound was caused by the enemy. 

	c.  Nevertheless, the fact remains he sustained a gunshot injury to one (or possibly both legs) while engaged in combat in RVN.  He was treated subsequently in succession at the 18th Surgical Hospital, 95th Evacuation Hospital, and the 6th Convalescent Center in RVN by various means.  Any doubt should be ruled in his favor.  He appears to have met the criteria for award of the Purple Heart and it appears this award was inadvertently left off his DD Form 214.  Therefore, he is entitled to correction of his DD Form 214 to show it.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ____X____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. Notwithstanding the staff DISCUSSION AND CONCLUSIONS above to add the Purple Heart to the applicant’s DD Form 214, the Board believed that his records do not show he met the stated requirements for award of the Purple Heart.  The contradictory description of his injuries in his Narrative Summary fail to confirm he received a bullet wound as a result of enemy action.

2. The Board accepts the analyst’s conclusion that the applicant is eligible to wear three bronze service stars on his Vietnam Service Medal.

3. Therefore, 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 adding to his DD Form 214 for the period ending on 3 November 1970 three bronze service stars to be affixed to his already-awarded Vietnam Service Medal.

4. The Board further determined that the evidence presented was 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.




      _______ _ XXX____   ___
               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)                                         AR20110010388





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ABCMR Record of Proceedings (cont)                                         AR20110010388



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