BOARD DATE:	  1 November 2012

		DOCKET NUMBER:  AR20120006507 


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 with Oak Leaf Cluster.

2.  The applicant states that the researcher is his counsel for this appeal.

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge) and a Freedom of Information Act release to grant counsel access to the applicant's military records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that he be notified in the event of an affirmative decision so that he can arrange for an appropriate presentation.

2.  Counsel states the applicant was wounded by a fragment that entered at the top front of his scalp, followed the contour of his skull and exited near the rear of his scalp.  Of the five Americans who started the mission only three finished it.  The lieutenant was medically evacuated for non-combat problems, and the staff sergeant was killed in action.  The Medal of Honor recommendation for Master Sergeant (MSG) Zio____n shows that all three of the American survivors were wounded.  

3.  Counsel provides document or copies identified as "Exhibits" as follows:

* A – statement by Sergeant (SGT) Za____ski, the medic
* B – statement by MSG Zio____n (then a sergeant), the team leader 
* C – Medal of Honor recommendation
* D – General Orders Number 2391, 5th Special Forces Group, dated 12 December 1970
* E – General Orders Number 2431, 5th Special Forces Group, dated 19 December 1970
* F – General Orders Number 2381, 5th Special Forces Group, dated 8 December 1970
* G – a list of contacts

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 1 March 1968.  He completed training, including airborne and Special Forces training, and was assigned to Vietnam in June 1970.

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

	a.  item 38 Record of Assignments) – service in Vietnam with 5th Special Forces Group from 11 June 1970 to 28 February 1971.  His conduct and efficiency ratings were exclusively “excellent” throughout his period of active duty service;

	b.  item 40 (Wounds) – is blank;

   c.  item 41 Awards and Decorations – the National Defense Service Medal, Parachutist Badge, Vietnam Service Medal, Combat Infantryman Badge, Republic of Vietnam (RVN) Campaign Medal with Device (1960), one Overseas Service Bar, Bronze Star Medal, RVN Jump Wings, Bronze Star Medal with "V" Device and Oak Leaf Cluster, the RVN Civil Actions Honor Medal (1st Class), and Sharpshooter Marksmanship Qualification Badge with Bar Rifle (M-14).
4.  General Orders Number 2381, Headquarters, 5th Special Forces Group, 1st Special Forces, awarded the applicant the Purple Heart for wounds sustained in action on 15 November.

5.  The applicant returned to the United States and was honorably separated, on 1 March 1971.  Except for adding the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), his DD Form 214 lists the same awards as his DA Form 20 in item 24.

6.  The applicant's medical records are not available.  His 28 November 1970 wound is not shown on the Vietnam Casualty Roster.  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 anything pertaining to the applicant.

7.  Among the exhibits submitted by counsel are the following:

	Exhibit A – is a signed statement by SGT Za____ski who relates that on 
26-29 November 1970 he was the medic on a Special Forces/Montagnard mission into Laos.  While they were under attack, the applicant, who was covering the flank, was hit in the head but still firing at the enemy.  The entrance wound was at the front hairline, the exit wound at the back of the head.  The applicant was bleeding profusely.  SGT Za____ski applied pressure dressings but the bleeding did not stop until the enemy deployed teargas and the applicant's gas mask clamped down on the pressure bandages enough to stop the bleeding.  They finally broke contact with the enemy and were evacuated the next day.  The applicant was lucky to have sustained only scalp lacerations even though the bleeding made it quite serious under the circumstances.  The applicant was taken to the hospital in Pleiku where he was treated and released.  SGT Za____ski only recently learned that the applicant had not received the Purple Heart for this wound.

   Exhibit B – is a notarized statement by the SGT Zio____n who writes that he was leading the reconnaissance element of the mission.  He was maintaining a defensive position at a designated landing zone when they were engaged by a superior-sized force.  He saw the applicant go down and heard him say, Oh my God I'm hit."   He believes that the medic, SGT Za____ski, saved the applicant's life.

   Exhibit C – is the recommendation for the Medal of Honor for MSG Zio____n for this action.  (According to counsel, a Distinguished Service Cross was awarded in 2005.)  The recommendation form lists the applicant and the medic as witnesses and the casualties as "4 indigenous KIA, 1 American KIA, 25 indigenous WIA, 3 American WIA."  
   
   Exhibit D – 5th Special Forces Group general orders awarding SGT Za____ski and SGT Zio____n the Purple Heart for 28 November 1970 
   
   Exhibit E – 5th Special Forces Group general orders awarding SGT Zio____n the Purple Heart for 25 November 1970.

   Exhibit F – 5th Special Forces Group general orders awarding the applicant the Purple Heart for a wound sustained on 15 November 1970.

   Exhibit G – lists contact information for the three Soldiers who survived the mission and the 5th Special Forces Group adjutant.

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

   a.  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.

   b.  The Vietnam Service Medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations.  A bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign.  Qualifying campaign periods that coincide with the applicant's tour of duty include the Sanctuary Counteroffensive from 1 May through 30 June 1970 and the Vietnam Counteroffensive Phase VII from 1 July 1970 through 30 June 1971.

9.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) stated the authority to award the Purple Heart was delegated to hospital commanders.  It directed that all personnel treated and released within 24 hours would be awarded the Purple Heart by the organization to which the individual was assigned.  Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam would be awarded the Purple Heart directly by the hospital commander rendering treatment.

10.  Army Regulation 672-5-1 (Awards), in effect at the time, stated the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940; for first award only, 1 year served entirely during the period 7 December 1941 to 2 March 1946; and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  The enlisted person must have had all "excellent" conduct and efficiency ratings.  There must have been no convictions by a court-martial.  

11.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Register shows that units serving in Vietnam between July 1965 and March 1973 are authorized the RVN Gallantry Cross with Palm Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  The witnesses relate that the applicant was wounded, treated in the field, and evacuated to a hospital.  

2.  The governing regulation directed that the hospital commander was to award the Purple Heart if the Soldier was kept more than 24 hours.  Given the nature of the wound, the applicant's immediate release is quite probable.  However, it is reasonable to believe the Special Forces command assumed the hospital had awarded the Purple Heart.

3.  The Vietnam Casualty Roster and ADCARS should not be considered definitive.  Neither listed the applicant's earlier, 15 November 1970, Purple Heart incident.  

4.  Given the attention that his comrades-in-arms have devoted to this effort to see justice done, it is appropriate to award the Purple Heart as an exception to the policy that requires treatment to be a matter of official record.  The applicant should be awarded the Purple Heart with Oak Leaf Cluster for wounds sustained in action against the enemy on 28 November 1970.

5.  The applicant distinguished himself by his combat service, promotion to the rank of sergeant and his exclusively excellent conduct and efficiency ratings.  The Army Good Conduct Medal should be awarded at this time.

6.  The applicant served during two designated campaign periods and is entitled to two bronze service stars for wear on the Vietnam Service Medal.  

7.  He is authorized the Republic of Vietnam Gallantry Cross with Palm Unit Citation.



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 with Oak Leaf Cluster for wounds sustained in action on 28 November 1970;

	b.  awarding him the Army Good Conduct Medal (1st Award) for the period 8 March 1968 through 1 March 1971; and 

	c.  adding to the awards already shown on his 1 March 1971 DD Form 214 the Purple Heart with Oak Leaf Cluster, the Army Good Conduct Medal, two bronze service stars for wear on the Vietnam Service Medal, and the 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)                                         AR20120006507





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ABCMR Record of Proceedings (cont)                                         AR20120006507



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