IN THE CASE OF:	  

		BOARD DATE:	  14 August 2012

		DOCKET NUMBER:  AR20120013168 


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 reconsideration of his request for award of the Purple Heart for wounds received in Vietnam.

2.  The applicant states, in effect, that he obtained additional evidence that has not been previously considered to show that he deserves the Purple Heart.  He also states the Board has previously awarded other Soldiers the Purple Heart in similar circumstances.

3.  The applicant provides a table of contents showing his new evidence and includes notarized affidavits from his commander, platoon sergeant, and two fellow Soldiers.  He also provides copies of daily staff journals for the period in question.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s request be approved.

2.  Counsel states, in effect, that the sworn affidavits should serve as sufficient evidence to show the applicant was in fact wounded in action by the enemy and medically evacuated for treatment. 

3.  Counsel provides a four-page affidavit outlining his arguments.



CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC93-05251, dated 25 May 1994 and AR2000043876, dated 22 August 2000.

2.  The applicant was inducted into the Army of the United States on 2 August 1967.  He completed the training requirements and he was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).  

3.  On 18 December 1967, he was transferred to Germany and on 5 March 1968 he departed for Vietnam.  On 30 March 1968, he arrived in Vietnam and he was assigned to Company D, 2d Battalion, 5th Cavalry Regiment, 1st Cavalry Division (Airmobile).  He was promoted to the rank of sergeant on 18 December 1968. 

4.  After serving in five campaigns, the applicant departed Vietnam on 29 March 1969 and was transferred to Fort Lewis, Washington where he was honorably released from active duty (REFRAD) on 30 March 1969 as an overseas returnee.  

5.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued at the time of his REFRAD shows he completed 1 year, 7 months, and 24 days of active service and he was awarded the National Defense Service Medal, Vietnam Service Medal (VSM), Vietnam Campaign Medal, Bronze Star Medal, Combat Infantryman Badge, Air Medal, and the Army Commendation Medal (ARCOM).

6.  His official records show that he was awarded the ARCOM with “V” Device and one Oak Leaf Cluster (1 OLC).  His records also show that at the time of his REFRAD he underwent a separation medical/physical examination and he indicated that his present health was “Good” and that he had a leg wound.  For reasons not explained in the available records that entry was lined through.

7.  His records contain no evidence showing he was wounded in action in Vietnam or that he was treated for any such wounds.  Additionally, his name is not contained on the Vietnam Casualty Listing.  

8.  His records show he had "excellent" conduct and efficiency ratings throughout his service and his record is void of any derogatory information that would serve to disqualify him for award of the Army Good Conduct Medal (AGCM).

9.  On 25 August 1969, the Veterans Administration (VA) granted the applicant service connection for a shrapnel wound to the right leg.

10.  The applicant applied to the Total Army Personnel Command (now known as Human Resources Command) for award of the Purple Heart.  On 7 November 1990, the applicant was advised that there was no evidence of medical treatment given by a medical officer or aidman; therefore, award of the Purple Heart could not be authorized.

11.  On 8 September 1992, he applied to this Board for award of the Purple Heart and provided two witness statements supporting his contention that he was wounded.  However, the statements were not notarized.  On 25 May 1994, the Board denied his request based on failure to timely file his application within the 
3-year time limit. 

12.  He filed a request for reconsideration for award of the Purple Heart and provided a statement from his platoon sergeant confirming he had been wounded in May 1968, due to enemy action, he had been medically evacuated for treatment, and returned to duty.  This statement was also not notarized.  However, on 22 August 2000, the Board elected to review his case and again his case was denied based on insufficient evidence to show he was wounded or treated for such wounds.

13.  The applicant now provides notarized affidavits from his commanding officer in Vietnam who is also a decorated veteran, his platoon sergeant, and two fellow Soldiers from his unit in Vietnam.

14.  The commander’s statement is very specific and indicates the applicant was wounded by shrapnel during an enemy attack on or about 8 May 1968 at firebase Snapper when the unit was in the process of moving to Dong Ha, 50 miles east of their present position.  He goes on to state the applicant’s platoon sergeant notified him that the applicant’s wound was not life threatening but the wound required treatment and requested permission to medically evacuate the applicant.  He continues by stating that he gave permission to medivac the applicant and the applicant was medivaced to Dong Ha.  The unit met back up with the applicant later that day.  His wounds had been bandaged up and the largest piece of shrapnel removed.  He also states that because the unit was moving, no medical facilities had been set up when the applicant was treated.  He asserts that he was surprised to learn that the applicant had not received the award of the Purple Heart and contends that it should be awarded at this time.


15.  The platoon sergeant’s affidavit indicates the applicant was wounded during enemy action at Landing Zone Snapper in May 1968 and despite being wounded he increased the rate of accurate mortar fire.  He confirms the applicant was medically evacuated for treatment and was returned to the unit.

16.  An affidavit submitted by a fellow Soldier indicates that he witnessed the applicant being wounded by shrapnel during an enemy rocket attack and that he witnessed the applicant being airlifted by helicopter for treatment.

17.  An affidavit submitted by a fellow Soldier also indicates that he assisted in carrying the applicant down the hill for evacuation and confirms the applicant was wounded as a result of enemy action.

18.  A review of the battalion staff journals provided by the applicant with his application shows that at 1405 hours on 9 May 1968 the applicant’s unit requested medical evacuation of one enlisted member due to fragment wounds incurred after an enemy rocket attack.

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

20.  Army Regulation 600-8-22 also states a bronze service star based on qualifying service for each campaign listed in appendix B will be worn on the appropriate service medal, which includes the Vietnam Service Medal.  A silver service star is worn in lieu of five bronze service stars.

21.  Army Regulation 672-5-1 (Awards), in effect at the time, stated the Army Good Conduct Medal (AGCM) was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940; for the 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.  

22.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) was published to assist commanders and personnel officers in determining or establishing the eligibility of Soldiers for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict.  It shows the applicant's unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation during the period he served with the unit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be awarded the Purple Heart for wounds received in Vietnam has been noted and appears to have merit.

2.  While there is no record of the applicant being treated for a shrapnel wound, his commander, platoon sergeant, and two fellow Soldiers have all confirmed in notarized affidavits that the applicant was wounded by shrapnel during an enemy rocket attack on or about 9 May 1968 and that he was subsequently medically evacuated for treatment.

3.  The commander also explains that the unit was in the process of relocating and that there were no standing medical treatment facilities at the new location where the applicant was treated; the unit met back up with him later in the day.  The commander notes the applicant was bandaged when the unit arrived at his location.

4.  It is also noted that at the time of his REFRAD, the applicant noted that he had a leg wound and that entry was lined out.  While there is no record of treatment for his wounds it does not negate the evidence provided with his application in the form of eyewitness statements that indicate the applicant was wounded and medically evacuated for treatment.  Accordingly, as a matter of equity, the applicant should receive any benefit of doubt that may exist in his case and be awarded the Purple Heart for wounds received in action in Vietnam on 9 May 1968, while serving in the rank of private first class.

5.  It is further noted that the applicant was awarded the ARCOM with “V” Device and 1 OLC.  Additionally, he served in five campaigns and is authorized to wear one silver service star on his already awarded VSM.  He is also authorized to wear the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Accordingly, his DD Form 214 should be corrected to reflect these awards.

6.  After carefully examining the applicant’s record of service, it appears the applicant should have received the AGCM (1st Award) for his service from 
3 August 1967 through 30 March 1969.  This conclusion is based on the fact that his record is void of any derogatory information which would have precluded him from being awarded the AGCM and the lack of any specific action by the applicant’s unit commander to disqualify him from receiving this award.  The evidence further suggests that the applicant not receiving the AGCM was likely the result of an administrative error as opposed to it being the result of a conscious disqualification by any of his unit commanders.  Therefore, the applicant should be awarded the AGCM (1st Award) and his DD Form 214 should be corrected to show this award.

BOARD VOTE:

___X____  __X____  __X_____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AC93-05251, dated
25 May 1994 and AR2000043876, dated 22 August 2000.  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 in Vietnam on 9 May 1968 while serving in the rank of private first class, and AGCM (1st Award) for the period 3 August 1967 to 30 March 1969;
   
   b.  deleting the ARCOM and VSM from his DD Form 214; and
   
   c.  adding the Purple Heart, AGCM (1st Award), ARCOM with “V” Device and 1 OLC, VSM with one silver service star, and Republic of Vietnam Gallantry Cross with Palm Unit Citation to his DD Form 214.


2.  The Board wants the applicant and all others to know that the sacrifices he made in service to the United States during the Vietnam War are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   _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)                                         AR20120013168



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ABCMR Record of Proceedings (cont)                                         AR20120013168



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