IN THE CASE OF:	  

		BOARD DATE:	  17 April 2012

		DOCKET NUMBER:  AR20110018132 


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 two Purple Heart medals and the rank of sergeant, pay grade E-5.

2.  The applicant states he was wounded twice in the Republic of Vietnam (RVN) and was promoted prior to his discharge.  His DD Form 214 does not show two Purple Hearts or his last promotion.

3.  The applicant provides copies of his DD Form 214 and a Department of Veterans Affairs (VA) data card.

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.  Evidence of record and background information:

	a.  On 15 July 1969, the applicant was inducted into the Army of the U.S.  He completed his initial training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

	b.  On 21 November 1969, the applicant departed Fort Polk, Louisiana, for duty in the RVN.

	c.  On 29 December 1969, the applicant was assigned for duty as a rifleman with Company D, 3rd Battalion, 1st Infantry Regiment, 11th Infantry Brigade.

	d.  On 11 February 1970, he was wounded in action.  He received fragment wounds to his left arm.  His wound and medical treatment is documented in Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) and on the Vietnam Casualty List.

	e.  On 16 March 1970, he was advanced to specialist four, pay grade E-4.

	f.  On 30 July 1970, he was very seriously injured as a result of a non-hostile detonation.  A defensive explosive device exploded when he picked it up. He was hospitalized and evacuated from the combat theater.

	g.  On 17 October 1970 he was released from the hospital and assigned for duty as a rifleman at Fort Carson, Colorado.

	h.  On 14 April 1971, the applicant was released from active duty.  He had attained the rank of specialist four, pay grade E-4 and had completed 1 year and
9 months of creditable active duty service.

3.  The applicant's DD Form 214 lists his awards as:

* National Defense Service Medal
* Army Commendation Medal (ARCOM)
* Combat Infantryman Badge
* Vietnam Service Medal with three bronze service stars
* Vietnam Campaign Medal with 1960 Device

4.  The applicant's DA Form 20 shows in:

	a.  Item 38 (Record of Assignments) shows that his conduct and efficiency ratings were excellent.  The applicant's records do not contain any evidence of disciplinary action.  There is no evidence to show that the commander took any action to deny him the Army Good Conduct Medal.

	b.  Item 41 (Awards and Decorations) shows he was awarded the Sharpshooter Marksmanship Badge with Rifle (M-14) Bar; and the Marksman Marksmanship Qualification Badge with Rifle (M-14) Bar.

5.  A review of the Awards and Decorations Computer Assisted Retrieval System (ADCARS), failed to reveal any orders awarding the applicant the Purple Heart.   ADCARS is an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command.

6.  Army Regulation 600-8-22 (Military Awards) provides for award of the Purple Heart to a member of the Armed Forces who, while serving in any capacity with one of the U.S. Armed Services after 5 April 1917, has been wounded or killed, or who has died or may die after being wounded in any action against an enemy of the U.S.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

7.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in the Republic of Vietnam.  This publication shows that the 3rd Battalion, 1st Infantry Regiment, during the time of the applicant's assignment, was cited in Department of the Army General Orders Number 42, dated in 1972 for award of the RVN Gallantry Cross with Palm Unit Citation.

8.  Army Regulation 672-5-1 (Awards), in effect at the time, provided that the Army Good Conduct Medal was awarded to enlisted Soldiers who had completed a qualified 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.  The enlisted person must have had all "excellent" conduct and efficiency ratings and no convictions by a court-martial.  Ratings of "unknown" for portions of the period under consideration are not disqualifying.  Service school efficiency ratings based upon academic proficiency of at least "good" rendered subsequent to 22 November 1955 are not disqualifying.

9.  Army Regulation 635-5 (Separation Documents), as in effect at the time, provided detailed instructions for completing separation documents, including the DD Form 214.

	a.  It provided for appropriate entries in items 5a (Grade, Rate or Rank) and 5b (Pay Grade).

	b.  It also provided that all decorations, medals, commendations, citations and campaign ribbons as shown on the DA Form 20 to be entered in Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show award of two Purple Heart medals and the rank of sergeant, pay grade E-5.

2.  The evidence of record clearly shows that the applicant was advanced to specialist four, pay grade E-4 on 16 March 1970.  However, there is nothing in his record to indicate that he was ever recommended for or promoted to the rank of sergeant, pay grade E-5.  His DD Form 214 shows his rank and pay grade as specialist four, E-4.  Therefore, this portion of his request should be denied.

3.  The evidence of record clearly shows that the applicant was wounded on 
11 February 1970 as a result of hostile action.  This wound was given medical treatment and made a matter of official record.  Therefore, he is entitled to receive a Purple Heart and it should be shown on his DD Form 214.

4.  The evidence of record also clearly shows that the applicant was very seriously injured on 30 July 1970 when a defensive explosive device that he picked up detonated.  This incident was determined to not be the result of enemy action and did not qualify for award of the Purple Heart.  Therefore, that portion of the applicant's request concerning a second Purple Heart should be denied.

5.  The applicant's records clearly show that he distinguished himself in the performance of his military service as evidenced by his attaining the rank of specialist four, receiving a personal decoration (ARCOM), and achieving "excellent" conduct and efficiency ratings.  Therefore, it is presumed that his not receiving an Army Good Conduct Medal for his service was an oversight.  Accordingly, he should be awarded this medal.

6.  Records show that the applicant's unit was cited in general orders for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, his records should be corrected to show this foreign unit award.

7.  Records show the applicant qualified as a sharpshooter with his M-14 rifle and as a marksman with his M-16 rifle.  Therefore his DD Form 214 should be corrected to show award of the corresponding marksmanship badges.

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.  awarding him the Purple Heart for wounds sustained on 7 February 1970;

	b.  awarding him the Army Good Conduct Medal for the period from 
15 July 1969 to 14 April 1971; and

	c.  showing in Item 24 of his DD Form 214:

* Purple Heart
* Army Good Conduct Medal
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar
* Marksman Marksmanship Qualification Badge with Rifle (M-16) Bar

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 showing award of a second Purple Heart or the rank of sergeant, pay grade E-5.



      ____________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)                                         AR20110018132





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ABCMR Record of Proceedings (cont)                                         AR20110018132



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