IN THE CASE OF:	   

		BOARD DATE:	  21 April 2015

		DOCKET NUMBER:  AR20140014749 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Purple Heart and the Presidential Unit Citation.  

2.  The applicant states:

   a.  The unit he served with in Vietnam, Company D, 4th Battalion, 12th Infantry Regiment, 199th Infantry Brigade, was awarded the Presidential Unit Citation for actions during the period 5 to 10 May 1968 when he was assigned to the company.
   
   b.  He was wounded in Vietnam, but he did not receive a Purple Heart.

3.  The applicant provides:

* self-authored statement
* DD Form 214
* DD Form 215 (Correction to DD Form 214)
* Eye-witness statement
* General Orders Number 60, dated 17 October 1969
* Department of Veterans Affairs (VA) Rating Decision



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 December 1965.  

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

   a.  Item 31 (Foreign Service) he served in Germany from 4 June 1966 to 22 December 1967 and in the Republic of Vietnam (RVN) from 3 January to approximately 16 November 1968.  
   
   b.  Item 38 (Record of Assignments) he was assigned to the following units in Vietnam:
   
* Company E, 4th Battalion, 12th Infantry Regiment, 199th Infantry Brigade from 16 to 31 January 1968
* Company D, 4th Battalion, 12th Infantry Regiment, 199th Infantry Brigade from 1 February to 14 August 1968
* Company A, 7th Support Battalion, 199th Infantry Brigade from 
15 August to 16 October 1968
   
   c.  Item 38 no entry indicating he was hospitalized in a patient status.
   
   d.  Item 40 (Wounds) no entries indicating he was wounded in action.
   
   e.  Item 41 (Awards and Decorations) no entries indicating he was awarded the Purple Heart or the Presidential Unit Citation.

4.  On 17 November 1968, he was honorably released from active duty and transferred to the control of the U.S. Army Reserve.


5.  He provided the following documents:

	a.  DD Form 215, dated 17 March 1969, which shows his name was amended and the Silver Star was added to his DD Form 214.

	b.  Headquarters, Department of the Army, Washington, DC, General Orders Number 60, dated 17 October 1969, which show Company D, 4th Battalion, 12th Infantry Regiment, 199th Infantry Brigade was awarded the Presidential Unit Citation for extraordinary heroism during the period 5 to 10 May 1968 while engaged in military operations against a hostile force in the RVN.  

	c.  VA Rating Decision, dated 15 January 1999, which shows he was awarded service-connection disability compensation for a fragment wound to his right hip, muscle group XVII, moderate with retained foreign body (20 percent); pes planus, bilateral, moderate (increased from 0 percent to 10 percent effective 15 January 1998); and a slight scar on his left temple (0 percent).

	d.  An eye-witness statement, dated 4 August 2014, from a former fellow Soldier who states the applicant was a Squad Leader in his platoon from February to July 1968.  The applicant was an integral part of Company D's success in an extended battle from 5 to 10 May 1968.  As a result of this action, Company D was awarded the Presidential Unit Citation.  He attests that the applicant was near him when he was struck in the hip by shrapnel from an incoming mortar round.  The applicant was sent to the rear for further treatment.  He describes the applicant as a courageous leader and he would like to see the applicant receive the Purple Heart that he so richly deserves.  

	e.  A self-authored letter, dated 14 August 2014, in which he states that he received a shrapnel wound on his right upper leg on or about 6 May 1968 from incoming mortar fire.  At that time, he was serving as an infantryman in the RVN with Company d, 4th Battalion, 12th Infantry Regiment, 199th Infantry Brigade.  He also states that he was treated in the field by the field medic R.D.  Later he was shipped to Long Binh for further examination and returned to duty in two weeks.  After his tour of duty, he was instructed to go to Waco, TX for an examination in which he was awarded a 20 percent disability rating for his shrapnel wound.  The medic is no longer alive.  There is some documentation regarding the wounded in action on 6 May 1968 in the Morning Report; however, no names were mentioned.  No one bothered to recommend him for the Purple Heart.  


6.  His service record does not contain orders that show he was awarded the Purple Heart or medical documents that show he was wounded in action.  The Vietnam casualty roster does not list his name.

7.  He was honorably released from active duty on 17 November 1968.  He completed 2 years, 11 months, and 17 days of active military service.  

8.  His DD Form 214 shows he was awarded or authorized the National Defense Service Medal, RVN Campaign Medal with Device (1960), Army Good Conduct Medal, Vietnam Service Medal, and Combat Infantryman Badge.

9.  A review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the U.S. Army Human Resources Command Military Awards Branch, failed to reveal any orders for the Purple Heart pertaining to the applicant.

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 the unit to which the applicant was assigned was cited for award of the:

   a.  Valorous Unit Award for the period 31 January to 19 February 1968 by Department of the Army General Order (DAGO) Number 48, dated 1968;
   
   b.  RVN Gallantry Cross with Palm Unit Citation for the period 19 June 1968 to 31 July 1970 by DAGO Number 51, dated 1971; and 
   
   c.  RVN Civil Actions Honor Medal First Class Unit Citation for the period 12 December 1966 to 31 August 1970 by DAGO Number 51, dated 1971.

11.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained 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 treatment by medical personnel, and the medical treatment must have been made a matter of official record.

12.  Army Regulation 600-8-22 states 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.  This same regulation states a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each credited campaign.  A silver service star is authorized in lieu of five bronze service stars.  Appendix B shows that during his service in Vietnam, he participated in the following five campaigns:

* Vietnam Counteroffensive Phase III 
* Tet Counteroffensive
* Vietnam Counteroffensive Phase IV 
* Vietnam Counteroffensive Phase V
* Vietnam Counteroffensive Phase VI

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was wounded in Vietnam but did not receive a Purple Heart was considered.  However, his service record is void of medical documentation which confirms he was wounded as a result of hostile action during his assignment in the RVN.

2.  The applicant's statements contending he received a shrapnel wound to his right upper leg on or about 6 May 1968 from incoming mortar fire and that he was treated by a field medic are acknowledged.  However, his service record is void of evidence which indicates he sustained this wound as the result of hostile action and his name is not listed on the Vietnam casualty roster.  

3.  By regulation, in order to award the Purple Heart, it is necessary to establish that a Soldier was wounded as a result of enemy action, the wound required treatment by medical personnel, and the treatment must have been made a matter of official record.  

4.  The eye-witness statement provided by the applicant was carefully considered; however, this statement alone is insufficient as a basis to grant him award of the Purple Heart.

5.  In the absence of independent corroborating evidence substantiating the statements provided, there is an insufficient basis upon which to award the Purple Heart.

6.  The evidence of record shows the VA granted the applicant service connection for fragment wound to his right hip, muscle group XVII, moderate with retained foreign body (20 percent), pes planus, bilateral, moderate (increased from 0 percent to 10 percent effective 15 January 1998), and a slight scar on his left temple (0 percent).  However, the VA rating decisions are insufficient to show the applicant's wounds were incurred as a result of hostile action.

7.  General Orders Number 60, dated 17 October 1969, show Company D, 4th Battalion, 12th Infantry Regiment, 199th Infantry Brigade was awarded the Presidential Unit Citation for extraordinary heroism during the period 5 to 10 May 1968 in the RVN.  The evidence of record shows the applicant was assigned to this unit during the period it was cited for award of the Presidential Unit Citation; therefore, it would be appropriate to add this unit citation to his DD Form 214.

8.  His unit in the RVN was cited for award of the Valorous Unit Award, RVN Gallantry Cross with Palm Unit Citation, and RVN Civil Actions Honor Medal First Class Unit Citation during his period of assignment.  Therefore, his DD Form 214 should be corrected to show these awards.

9.  The applicant participated in five campaigns during his service in the RVN.  Therefore, he is entitled to one silver service star (in lieu of five bronze service stars) for wear on his already-awarded Vietnam Service Medal and correction of his DD Form 214 to show this silver service star.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

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

	b.  adding award of the Presidential Unit Citation, Valorous Unit Award, RVN Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit Citation, and Vietnam Service Medal with one silver service star to his DD Form 214.


2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the Purple Heart.



      _______ _   __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)                                         AR20140014749



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ABCMR Record of Proceedings (cont)                                         AR20140014749



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