IN THE CASE OF:	  

		BOARD DATE:	    20 November 2012

		DOCKET NUMBER:  AR20120008092 


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 wounded while in Vietnam by friendly fire but he was told he could not receive the Purple Heart.  He has learned through websites and Department of Veterans Affairs' members that he is entitled to the Purple Heart.

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  

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 26 August 1965 and he was awarded military occupational specialty 11C (Indirect Fire Infantryman) upon completion of initial entry training.  

3.  Headquarters, 82nd Airborne Division, Special Orders Number 158, dated 
12 July 1966, awarded him the Expert Marksmanship Qualification Badge with Rifle Bar.  

4.  His DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from 3 October 1967 to 11 February 1968.  It also shows he served with Company C, 3rd Battalion, 503rd Infantry Regiment, while in Vietnam.

5.  His military records contain a message and a Western Union telefax indicating that on 13 January 1968, he received metal fragment wounds to the head, chest, and abdomen which occurred when he was at a fire support base and he was hit by fragments from a short friendly recoiless rifle round.  The wound was considered to be as a result of hostile action.  His name is also listed on the Vietnam casualty roster as being wounded as a result of hostile action on 
13 January 1968.

6.  He was honorably released from active duty on 22 September 1968.  His 
DD Form 214 shows he earned the following awards:

* National Defense Service Medal
* Parachutist Badge
* Vietnam Service Medal
* Vietnam Campaign Medal
* Combat Infantryman Badge

7.  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 any orders for the Purple Heart pertaining to the applicant.

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.  A bronze service star is authorized with the Vietnam Service Medal for each campaign a member is credited with participating in while in Vietnam.  Appendix B of this regulation shows the campaigns for Vietnam.  During the applicant's tour in Vietnam he participated in two campaigns:

* Vietnamese Counteroffensive Phase III (1 June 1967 - 29 January 1968)
* Tet Counteroffensive (30 January - 1 April 1968)

9.  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 that were killed or wounded as a result of "friendly fire."

10.  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 that during his assignment to the 3rd Battalion,
503rd Infantry Regiment, it was cited for the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 22 October 1967 - 26 September 1970 by Department of the Army General Orders Number 51, dated 1971.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the Purple Heart has been carefully considered.  

2.  His military records contain a message and a Western Union telefax that show he was wounded by friendly fire during result of hostile action on              13 January 1968 and his name is listed on the Vietnam casualty roster as being wounded as a result of hostile action on the same date.  Therefore, there is sufficient evidence on which to base awarding him the Purple Heart and adding this award to his DD Form 214.

3.  He participated in two campaign phases during his service in Vietnam.  Therefore, he is entitled to two bronze service stars for wear on his Vietnam Service Medal and correction of his DD Form 214 to show these bronze service stars.
4.  Orders show he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar.  This badge should be added to his DD Form 214.

5.  His unit in Vietnam was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation during his period of assignment.  Therefore, his 
DD Form 214 should also 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 sustained on 13 January 1968;

	b.  deleting the Vietnam Service Medal from his DD Form 214; and 

	c.  adding to his DD Form 214 the following awards:

* Purple Heart
* Vietnam Service Medal with two bronze service stars
* Expert Marksmanship Qualification Badge with Rifle Bar
* 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)                                         AR20120008092



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ABCMR Record of Proceedings (cont)                                         AR20120008092



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