IN THE CASE OF:	  

		BOARD DATE:  15 March 2012

		DOCKET NUMBER:  AR20110016888 


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 not awarded the Purple Heart for combat related injuries he received on 7 April 1968 during an attack while on patrol in Khe Sanh
* He was transported by helicopter with other injured Soldiers to a field hospital where he was treated for fragment wounds
* He was hospitalized for 5 days
* He returned for a follow-up and it was decided not to remove any more fragments for fear of doing more damage
* He recently found a medical record of his follow-up treatment and an x-ray of his injuries 

3.  The applicant provides:

* Health record, dated 10 April 1968
* X-ray
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Letter, dated 1 August 2011, from a Member of Congress




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 30 June 1967.  He served as an infantryman assigned to Company D, 1st Battalion, 
12th Cavalry of the 1st Cavalry Division (Airmobile) in Vietnam from 5 December 1967 to 15 December 1968.  On 27 June 1969, he was released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining service obligation.

3.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the:

* National Defense Service Medal
* Combat Infantryman Badge
* Air Medal
* Vietnam Service Medal with two bronze service stars
* Bronze Star Medal
* Republic of Vietnam Campaign Medal with Device (1960)

4.  There are no orders for the Purple Heart in the available records.

5.  His name does not appear on the Vietnam casualty roster.

6.  He provided a health record, dated 10 April 1968, which states:

* "(KNE SANH)"
* "frag [fragment] wound RLE [right lower extremity] 3 days ago, complains of pain"
* "advised frag not to be removed at this time" 

7.  He also provided an x-ray [of what appears to be his lower right leg] which contains a foreign body in it. 

8.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This document shows the applicant's unit (1st Battalion, 12th Cavalry) at the time of his assignment was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Department of the Army General Orders 
56, dated 1969.

9.  Army Regulation 600-8-22 (Military Awards) states that the Purple Heart is awarded for a wound sustained 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 military personnel, and the medical treatment must have been made a matter of official record.  

10.  Information obtained from Wikipedia states the Battle of Khe Sanh was conducted in Vietnam between 21 January and 9 July 1968.  In March 1968, an overland relief expedition (Operation Pegasus – April 1-14 1968) was launched by a combined Marine-Army (1st Air Cavalry)/South Vietnamese task force that eventually broke through the Marines at Khe Sanh. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant claims he received combat related injuries on 7 April 1968 during an attack while on patrol in Khe Sanh.  

2.  Evidence shows he was assigned to the 1st Cavalry Division (Airmobile) on 
7 April 1968.  Evidence also shows the 1st Air Cavalry participated in Operation Pegasus (1-14 April 1968) during the Battle of Khe Sanh in Vietnam.    

3.  There are no orders for the Purple Heart in the available records and his name does not appear on the Vietnam casualty roster.  However, he provided contemporaneous medical evidence which indicates he sustained a fragment wound to his lower right leg on 7 April 1968 in Khe Sanh.  

4.  It is acknowledged he did not receive treatment for this fragment wound since it was advised that the fragment not be removed at that time.  However, any reasonable doubt should be resolved in the applicant's favor; therefore, the health record provided by the applicant is accepted as sufficient evidence on which to award the Purple Heart.

5.  His unit was cited for the Republic of Vietnam Gallantry Cross with Palm Unit Citation while he was assigned to it.  His DD Form 214 should be corrected 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.  awarding him the Purple Heart for wounds received in action on 7 April 1968 in Vietnam; and

	b.  adding the Purple Heart and Republic of Vietnam Gallantry Cross with Palm Unit Citation in item 24 of 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)                                         AR20110016888





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ABCMR Record of Proceedings (cont)                                         AR20110016888



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