IN THE CASE OF:	  

		BOARD DATE:	  3 April 2012

		DOCKET NUMBER:  AR20110019769 


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, the sister of a deceased former service member (FSM), requests, in effect, correction of the late FSM's record to show he was killed in action against an enemy of the United States or as a result of an act of any such enemy or opposing forces.  She also requests award of the Purple Heart via email.

2.  She states an enemy element was present at the time of the FSM’s death as noted in the attached statements of those present.
   
3.  She provides:

* DD Form 1300 (Report of Casualty)
* DA Form 1 (Army Morning Report)
* a letter
* five personal statements

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 FSM's records show he was inducted into the Army of the United States on 24 June 1969.

3.  His DA Form 20 (Enlisted Qualification Record) shows in:

   a.  item 38 (Record of Assignments) he was assigned to Company C, 1st Battalion, 12th Cavalry Regiment from 6 December 1969 to 30 June 1970.  On 
1 July 1970 his duty status was changed to deceased. 

	b.  item 40 (Wounds) is blank; and 

   c.  item 41 (Awards and Decorations) does not show award of the Purple Heart.

4.  General Orders 7068, issued by Headquarters 1st Cavalry Division (Airmobile), dated 2 May 1970, show he was awarded the Army Commendation Medal with "V" Device.  His record is void of any indication he was awarded an additional Army Commendation Medal.

5.  The applicant submitted and the FSM’s record contains:

   a.  DA Form 1, dated 2 July 1970, which shows the FSM’s duty status was originally reported as missing in action, but was subsequently changed to killed in action as the result of a fragment wound to the back of his head on 30 June 1970.
   
   b.  DA Form 1300, dated 13 July 1970, shows the FSM died 30 June 1970 in the Republic of Vietnam while in a night defensive position when an artillery round fired by a friendly force impacted the area.  The FSM’s death was categorized as a non-battle casualty.
   
   c.  a letter from the Office of the Adjutant General, Washington, DC, dated 9 October 1970, which informed the applicant’s parents that the late FSM was awarded the Bronze Star Medal with first Oak Leaf Cluster and Good Conduct Medal.  The memorandum also stated he was previously awarded the Air Medal, Army Commendation Medal, National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, Combat Infantryman Medal, and Expert Marksmanship Qualification Badge with grenade, rifle and automatic rifle bars.

6.  His name is not listed on the Vietnam casualty roster.

7.  The applicant submitted five personal statements from former members of the late FSM’s unit who state he was killed as the result of mortar rounds aimed at the enemy falling short of their projected target and exploding inside the night defensive position, but was not awarded the Purple Heart.  The personal statements also state four of the members wounded that day were awarded the Purple Heart but the FSM and one other member, who were initially listed as missing in action, were not awarded the Purple Heart.

8.  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."

9.  Army Regulation 600-8-22 (Military Awards) states 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.  In accordance with Title 10, U.S. Code, section 1129, for award of the Purple Heart, the Secretary of the Army will treat a member of the Armed Forces described in (a), below in the same manner as a member who is killed or wounded in action as the result of an act of an enemy of the United States.

	a.  A member described in this subsection is a member who is killed or wounded in action by weapon fire while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States, unless (in the case of a wound) the wound is the result of willful misconduct of the member.

	b.  This section applies to members of the Armed Forces who are killed or wounded on or after 7 December 1941.  In the case of a member killed or wounded, as described in paragraph 2-8b above, on or after 7 December 1941 and before 30 November 1993, the Secretary of the Army will award the Purple 


Heart under provisions of paragraph 2-8a above in each case which is known to the Secretary before such date or for which an application is made to the Secretary in such manner as the Secretary requires.

10.  A review of his record indicates he is entitled to additional awards and decorations that are not shown on his official military record.

11.  Appendix B of Army Regulation 600-8-22 lists the campaigns for the Vietnam Conflict.  Based on the applicant's period of service in the Republic of Vietnam he participated in the Vietnam Winter-Spring 1970, Sanctuary Counteroffensive, and Vietnam Counteroffensive Phase VII 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.

12.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam.  This pamphlet shows the unit to which the applicant was assigned was cited for award of the following for actions during the periods shown:

   a.  1 May through 29 June 1970, Valorous Unit Award by DA General Orders Number (DAGO) 43, dated 1972;

   b.  May 1969 through February 1970, Republic of Vietnam Gallantry Cross
with Palm Unit Citation by DAGO Number 11, dated 1973; and 

   c.  1 January 1969 through 1 February 1970, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation by DAGO Number 42, dated 1972.

DISCUSSION AND CONCLUSIONS:
1.  Based on the preponderance of evidence in this case it is reasonable to conclude that the FSM was killed in action as a result of friendly fire, in the heat of battle, that was intended to inflict damage upon the enemy.  

2.  Evidence shows the FSM was killed in action as a result of friendly fire.  Inadvertently, he was not awarded the Purple Heart due the fact he was initially reported as missing in action and his duty status was not changed to killed in action until a later date.

3.  Both statue and policy state that Soldiers who are either wounded or killed as the result of friendly fire are entitled to award of the Purple Heart retroactive to 7 December 1941.  Therefore, the FSM’s is entitled to award of the Purple Heart.

4.  Additionally, item 2 (Casualty Status) of the FSM’s DD Form 1300 should be corrected to show his casualty status as "BATTLE."

5.  DAGOs also show the unit to which the FSM was assigned was awarded the Valorous Unit Award, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  Therefore, he is entitled to correction of his record corrected to show these unit awards.

6.  General orders show the FSM was awarded the Army Commendation Medal with "V" Device.  Therefore, he is entitled to have his record corrected to add the "V" Device to his already awarded Army Commendation Medal.

7.  Evidence of record shows the FSM participated in two campaigns during his service in the Republic of Vietnam.  Therefore, he is eligible for award of two bronze service stars to be worn on his already-awarded Vietnam Service Medal.

BOARD VOTE:

___x____  ____x___  ___x____  GRANT FULL RELIEF

_______  _________  _________  GRANT PARTIAL RELIEF 

________  ________  _________  GRANT FORMAL HEARING

________  ________  _________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:
The Board determined the evidence presented is 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 the FSM the Purple Heart, posthumously, for being killed in action on 30 June 1970;   

   b.  issuing him an appropriate document that shows award of the Purple Heart, Valorous Unit Award, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, 


adding the "V" Device to his already awarded Army Commendation Medal, and adding two bronze service stars to his already awarded Vietnam Service Medal; and 

	c.  correcting item 2 of the FSM’s DD Form 1300 to show his casualty status as "BATTLE."



      ____________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)                                         AR20110019769





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ABCMR Record of Proceedings (cont)                                         AR20110019769



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