IN THE CASE OF:	  

		BOARD DATE:	  7 April 2015

		DOCKET NUMBER:  AR20140012386 


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
* correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the Purple Heart and Air Medal

2.  The applicant states:

* he was drafted in 1969 and he served in Vietnam from November 1969 through November 1970 
* he was wounded in Vietnam on 30 March 1970 while assigned to 3rd Platoon, Company A, 1st Battalion, 2nd Brigade, 501st Infantry Regiment, 101st Airborne Division, as a radio telephone operator (RTO)
* he cannot explain why there are no records of his injury except that someone in the rear made an error
* he was awarded the Air Medal and it is not listed on his DD Form 214
* his platoon sergeant talked with his first sergeant who said he would take care of the Purple Heart
* his first sergeant probably got busy with records for those killed in the early morning on 30 March 1970
* he was happy just being alive since he was an infantryman serving in the A Shau Valley in Vietnam
* he remembered the incident in 1979 when his doctor inquired about the shrapnel or bullet in his back
* his company was run over by the North Vietnamese Army in the early morning of 30 March 1970
* many were wounded, three or four men were killed, and some Soldiers were running out of ammunition and screaming for more
* he had extra ammunition and he was on the radio trying to get air support
* he heard a loud explosion as he attempted to give the Soldiers his ammunition and he got hit and knocked down with an awful burning sensation in his back that hurt badly
* the company's medic was busy checking for deceased and wounded Soldiers so he sought treatment after everything cooled down
* he told the medic he did not want to be evacuated because the company was short of personnel so the medic treated him in the field
* he reported his injury to his platoon leader, first sergeant, and commanding officer
* his company was always understaffed and the only thing they had was each other
* the company's mission directive was to search and destroy and they always ran into the North Vietnamese Army or the North Vietnamese Army would try to overrun the company at night

3.  The applicant provides:

* two self-authored statements
* DD Form 214
* four statements from former Soldiers
* DD Form 215 (Correction to DD Form 214)
* Department of Veterans Affairs (VA) Rating Decision, dated 27 December 2011, with VA medical record extracts
* Headquarters, 101st Airborne Division (Airmobile), General Orders Number 2317, dated 5 March 1970
* Headquarters, 101st Airborne Division (Airmobile), General Orders Number 5071, dated 7 May 1970
* Headquarters, 101st Airborne Division (Airmobile), General Orders Number 12120, dated 1 October 1970

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.  Award of the Air Medal is shown on the applicant's DD Form 215.  Therefore, this issue will not be further discussed in this Record of Proceedings.

3.  The applicant was inducted into the Army of the United States on 24 June 1969.

4.  Headquarters, U.S. Army Training Center, Infantry and Fort Polk, Special Orders Number 235, dated 23 September 1969, awarded him the Expert Marksmanship Qualification Badge with Machine Gun Bar (M-60).

5.  He served in Vietnam from 26 November 1969 through 8 November 1970 while assigned to Company A, 1st Battalion, 501st Infantry Regiment (Airmobile), 101st Airborne Division, and he participated in three campaigns during this period.

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

* item 22 (Military Occupational Specialties) – 11B (light weapons infantryman)
* item 40 (Wounds) – no injuries or wounds
* item 41 (Awards and Decorations) –

* National Defense Service Medal
* Vietnam Service Medal
* Air Medal
* Combat Infantryman Badge
* Republic of Vietnam Campaign Medal with Device (1960)
* Army Commendation Medal
* Bronze Star Medal
* Army Good Conduct Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Expert Marksmanship Qualification Badge with Machine Gun Bar
(M-60)
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-14)

7.  On 23 June 1971, he was honorably released from active duty.  His DD Form 214 shows he was awarded or authorized the:

* National Defense Service Medal
* Republic of Vietnam Campaign Medal
* Vietnam Service Medal with two bronze service stars
* Army Good Conduct Medal
* Combat Infantryman Badge
* Army Commendation Medal
* Bronze Star Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-14)

8.  On 19 January 2012, he was issued a DD Form 215 making the following corrections to his DD Form 214 for the period ending 23 June 1971:

* deleting award of the –

*	Republic of Vietnam Campaign Medal
*	Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
*	Marksman Marksmanship Qualification Badge with Rifle Bar (M-14)

* adding award of the –

* Republic of Vietnam Campaign Medal with Device (1960)
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Marksman Marksmanship Qualification Badge with Auto Rifle and Rifle Bars

9.  The applicant provided self-authored statements explaining the events surrounding his injury on 30 March 1970.  He also provided sworn statements from fellow Soldiers.

	a.  Major V____ J. Z____ stated he was the commander of Company A, 1st Battalion, 501st Infantry Regiment (Airmobile), 101st Airborne Division, during the applicant's service in Vietnam.  He provided a copy of his DD Form 214 to authenticate his unit and dates of service.  He stated:

*	the company was overrun with North Vietnamese soldiers on 30 March 1970 and four American Soldiers were killed
*	the applicant was assigned as the RTO and he was involved in several combat missions which contributed to his present emotional, psychological, and physical condition
*	the applicant was knocked down as he felt an impact on his back and he initially thought his radio had been hit by a piece of shrapnel
*	the applicant later realized he was hurt and he could not leave to go to the medic because he was the platoon's RTO
*	some of the Soldiers were short on ammunition and the applicant was passing out his ammunition while he was constantly on the radio
*	the applicant had to stay attached to the platoon leader's hip and he just forgot about things that were not life threatening as time went by
*	the applicant's bullet round came to rest in a location which did not hinder his ability to continue in battle and do his job
* the applicant 's surgeon noted a bullet resting next to his spine in evaluating an unrelated back problem

	b.  J____ T. R____ stated he was the platoon sergeant of Company A, 1st Battalion, 501st Infantry Regiment (Airmobile), 101st Airborne Division, during the applicant's service in Vietnam.  He stated:

*	he was shocked to learn the applicant did not receive the Purple Heart for wounds he received during an intense firefight on 30 March 1970
*	he was also shocked to learn no paperwork could be found for the applicant's wound because he knows the wound was reported to the first sergeant, T____ R____
*	Company A came under heavy small arms, rocket-propelled grenades, and mortar fire
*	the applicant reported that he had been hit in the back with shrapnel during the intense fire
*	the company's medic took brave actions to get to the applicant and tend to his wounds
*	the applicant sustained two to three wounds in his back 
*	the platoon leader determined the applicant's wounds were not life threatening after consulting with the medic and he decided not to call for a medical evacuation due to the high risk of it being shot down
*	the next day the applicant was urged to go to the rear for treatment, but he refused to go so that the seriously wounded could be evacuated
*	the first sergeant, now deceased, was notified the applicant would be staying in the field because the medic could take care of him
*	the first sergeant advised the platoon leader that all the paperwork would be taken care of and the applicant's folder had been pulled and it would reflect the applicant's back wounds
*	the company had 3 dead and 14 injured Soldiers and the applicant's paperwork or folder was lost or misplaced
*	the applicant earned the Purple Heart



	c.  R____ L____ M____ stated he was the company medical corpsman assigned to the applicant's platoon during his period of service in Vietnam.  He stated:

* on Easter Sunday, 30 March 1970, the company was overrun by the North Vietnamese Army and several Soldiers were wounded and included three fatalities
* the applicant was one of the wounded and he had a shrapnel injury to his back
* he checked the applicant and could not see anything severe so he applied some antibiotic and wrapped his injury with some gauze and tape
* he cleared the applicant to stay with the platoon because they were short on manpower

	d.  J__ K__ stated he served with the applicant in Vietnam.  The company was overrun by the North Vietnamese Army on 30 March 1970 and hit bad.  The company lost three Soldiers and many were injured, including the applicant.  The applicant was hit in the back by shrapnel and he had a small hole that was bleeding.  He refused to be medically evacuated so the medic patched him up because he was needed to man the radio.  All record keeping was very poor and not all of their injuries were recorded or were overlooked while they were in a firefight and even afterward.

10.  He provided a copy of his VA Rating Decision, dated 27 September 2011, that shows he received a 70-percent disability rating for post-traumatic stress disorder and a 10-percent disability rating for a mild back residual (remaining in the tissue) shrapnel injury.  His VA medical record extracts show the VA confirmed in 
x-rays from 1979 and 2011 that he has a metal fragment in his lower lumbar region and it has been left there by neurosurgeons due to fear of paralyzing him.

11.  He also provided copies of orders awarding him the Air Medal, Army Commendation Medal, and Bronze Star Medal.

12.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards.

	a.  The Purple Heart is awarded for a wound sustained in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required medical treatment, and the medical treatment must have been made a matter of official record.

	b.  A bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each credited campaign.

13.  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 1st Battalion, 501st Infantry Regiment, was awarded the Republic of Vietnam Civil Action Honor Medal First Class Unit Citation for the period 18 March 1968 through 2 May 1970 by Department of the Army General Orders Number 48, dated 1971.

14.  Army Regulation 635-5 (Separation Documents), in effect at the time, stated a DD Form 215 would be issued to provide missing information.  Paragraph 2-7 stated once a DD Form 214 had been issued, do not reissue except for the following reasons:

	a.  when directed by proper appellate authority, Executive Order, or by the Secretary of the Army;

	b.  when it was determined that the original DD Form 214 could not be properly corrected by issuance of a DD Form 215 or if the correction required issuance of more than two DD Forms 215; and/or

	c.  when two DD Forms 215 had been issued and an additional correction was required.

DISCUSSION AND CONCLUSIONS:

1.  Sufficient evidence has been presented showing he was wounded by enemy action on 30 March 1970.  His witness statements and the medical evidence of his shrapnel wound are accepted as confirmation of his injury.  Therefore, he is entitled to award of the Purple Heart and to correction of his DD Form 214 to show this award.

2.  He served in Vietnam during three campaigns.  Therefore, his DD Form 214 should be corrected to show three bronze service stars for wear on his previously-awarded Vietnam Service Medal.

3.  The unit to which he was assigned in Vietnam was awarded the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  Therefore, his DD Form 214 should be corrected to show this unit award.

4.  Special orders awarded him the Expert Marksmanship Qualification Badge with Machine Gun Bar (M-60).  Therefore, his DD Form 214 should be corrected to show this badge.



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 him the Purple Heart for wounds received in action in the Republic of Vietnam on 3 March 1970;

	b.  deleting award of the Vietnam Service Medal with two bronze service stars from his DD Form 214, and

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

* Purple Heart
* Vietnam Service Medal with three bronze service stars
* Republic of Vietnam Civil Action Honor Medal First Class Unit Citation
* Expert Marksmanship Qualification Badge with Machine Gun Bar (M-60)



      ______________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)                                         AR20140012386



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ABCMR Record of Proceedings (cont)                                         AR20140012386



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