IN THE CASE OF:  	  

		BOARD DATE:  26 May 2015	  

		DOCKET NUMBER:  AR20140016711 


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 military service records to show he sustained a concussion and was awarded the Purple Heart (1st Oak Leaf Cluster).

2.  The applicant states he served in the Republic of Vietnam (RVN) with the 
2nd Battalion (Mechanized), 22nd Infantry, 25th Infantry Division.

   a.   On 20 May 1968, the track of the lead Armored Personnel Carrier (APC) he was riding on top of either hit a mine or was hit by a rocket-propelled grenade (RPG).  It caused him to be knocked off of the APC.  He recalls waking up on the ground about 20 feet off the road.
   
   b.  He hurt his back and also experienced headaches, soreness around his eyes, nausea, and he was unable to eat.  He was put on bed rest for seven days and then returned to his unit.

   c.  He believes he should have been diagnosed with a concussion and awarded a second Purple Heart.

3.  The applicant provides copies of a self-authored statement (summarized above) and two military medical records.


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 was inducted into the U.S. Army on 11 April 1967.  He was awarded military occupational specialty 11H (Infantry Direct Fire Crewman).

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

* item 31 (Foreign Service), he served in Vietnam from 17 September 1967 through 12 September 1968
* item 33 (Appointments and Reductions), he was promoted to specialist four (SP4)/pay grade E-4 on 1 February 1968
* item 38 (Record of Assignments):  Headquarters and Headquarters Company, 2nd Battalion (Mechanized), 22nd Infantry, 25th Infantry Division, from 22 September 1967 through 12 September 1968
* item 40 (Wounds):  contusions to back and spine, 5 March 1968
* item 41 (Awards and Decorations):

* National Defense Service Medal
* RVN Campaign Medal with Device (1960)
* Vietnam Service Medal
* Combat Infantryman Badge
* Purple Heart
* 2 Overseas Service Bars
* Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar

4.  Headquarters, 25th Infantry Division, General Orders (GO) Number 1055, dated 8 March 1968, awarded the applicant the Purple Heart for wounds received in action against a hostile force on 5 March 1968.


5.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was honorably released from active duty on 
24 January 1969 and transferred to the U.S. Army Reserve Control Group (Annual Training).  

   a.  He had completed 1 year, 9 months, and 14 days of total active duty service this period that included 11 months and 25 days of foreign service.

   b.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the:

* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar
* Expert Marksmanship Qualification Badge with Rifle (M-16) Bar
* Purple Heart
* Combat Infantryman Badge
* RVN Campaign Medal with Device (1960)
* Vietnam Service Medal
* 2 Overseas Service Bars

6.  A review of the applicant's military personnel records failed to reveal any orders or other evidence that shows he was awarded a second award of the Purple Heart.

7.  A review of The Adjutant General's Office, Casualty Division's Vietnam casualty roster shows the applicant as a casualty on 5 March 1968, casualty status code 23 (hostile wounded in action:  not serious, hospitalized).  This review failed to show any additional entries pertaining to the applicant.

8.  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 Awards and Decorations Branch of the U.S. Army Human Resources Command, failed to reveal any orders for a second award of the Purple Heart pertaining to the applicant.  (A copy of Headquarters, 25th Infantry Division, GO Number 1055, dated 8 March 1968, is on file.)

9.  In support of his application the applicant provides the following documents.

   a.  A Radiographic Report 519-205 that shows on 5 March 1968 he was treated at Company B, 25th Medical Battalion after being thrown from an APC.  It shows the entries, "Struck mid-lumbar spine" and "Neuro[logically] within normal limits."  A lumbar spine examination was requested and there was "no fracture or joint abnormality noted."
   b.  Standard From 600 (Health Record – Chronological Record of Medical Care) that shows the following pertinent entries:

* 12 March 1968 – "Back is still tender but will be able to do light duty.  Patient had been on a[n] APC that was hit by a mine."
* 20 May 1968 – "Patient was on APC 2 days ago when hit by RPG.  Since has complained of headaches and soreness around the eyes.  Patient has been nauseated and unable to eat.  Patient has been on bedrest for 2 days.  Refer to 25th Medical [Battalion]."
* 20 May 1968 (25th Medical Battalion, Company B) – "Complained of headaches, dizziness, decreased appetite, [and] vomited [twice]."  Exam – Normal, Ears – Clear.  "Believe this does not represent any neurological residual.  Problem viral gastroentestroitis."  (It also shows he was prescribed medication.)

10.  A review of the applicant's military personnel records reveals that he may be authorized additional awards and decorations.

11.  Headquarters, Fort Polk, LA, Special Orders (SO) awarded the applicant the following badges:

* SO Number 192, dated 27 July 1967 – the Expert Marksmanship Qualification Badge with Recoilless Rifle (106mm) Bar
* SO Number 200, dated 4 August 1967 – the Marksman Marksmanship Qualification Badge with Pistol (.45 caliber) Bar

12.  The applicant's military personnel records fail to reveal evidence of a commander's disqualification that would have precluded him from being recommended for or awarded the Army Good Conduct Medal (AGCM) (1st Award).

   a.  There is no evidence of any disciplinary actions or adverse information.

   b.  Item 38 of the applicant's DA Form 20 shows he received all "excellent" conduct and efficiency ratings throughout his military service.

13.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provided that the AGCM was awarded to individuals who completed a qualifying period of active duty enlisted service.  This period was 3 years except in those cases when the period for the first award ended with the termination of a period of Federal military service.  The enlisted person must have had all "excellent" conduct and efficiency ratings.  Ratings of "unknown" for portions of the period under consideration were not disqualifying.  Service school efficiency ratings based upon academic proficiency of at least "good" that were rendered subsequent to 22 November 1955 were not disqualifying.  There must have been no convictions by a court-martial.

14.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam.  It shows the 2nd Battalion (Mechanized), 22nd Infantry, was cited for award of the:

* RVN Gallantry Cross with Palm Unit Citation for the period 1 August 1967 to August 1968 in Department of the Army General Orders (DAGO) Number 48 (1971)
* RVN Civil Actions Honor Medal First Class Unit Citation for the period 
1 August 1967 to 21 June 1970 in DAGO Number 51 (1971)

15.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.

   a.  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.  A bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each credited campaign.
	
	b.  Appendix B contains a list of Vietnam Conflict campaigns.  During the applicant's service in Vietnam, participation credit was awarded for the following campaigns:

* Vietnam Counteroffensive Phase III (1 June 1967- 29 January 1968)
* Tet Counteroffensive (30 January - 1 April 1968)
* Vietnam Counteroffensive Phase IV (2 April - 30 June 1968)
* Vietnam Counteroffensive Phase V (1 July - 1 November 1968)

   c.  The Purple Heart is awarded to any member who was wounded or killed as a result of enemy action.  A wound is defined as an injury to any part of the body from an outside force, element, or agent sustained in action in the face of the armed enemy or as a result of a hostile act of such enemy.  A physical lesion is not required; however, in order to support awarding a member the Purple Heart, it is necessary to establish the wound for which the award is being made required treatment by medical personnel and the medical treatment for the wound or injury received in action must have been made a matter of official record.  An oak leaf cluster will be awarded to denote a second award of the Purple Heart.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his military service records to show he sustained a concussion and was awarded a second award of the Purple Heart was carefully considered.

   a.  Records show the applicant sustained contusions to his back and spine, on 5 March 1968, and that he was awarded the Purple Heart for the injuries he sustained in connection with military operations against a hostile force.

   b.  The applicant provides medical records that show, on 20 May 1968, he complained of headaches, dizziness, soreness around the eyes, decreased appetite and vomiting, and that he received medical treatment at that time.  The medical records show his conditions were related to an incident that occurred two days prior (i.e., on 18 May 1968) when he was on an APC that was hit by an RPG.

    	(1)  The medical records indicate his symptoms did not represent any neurological residual.  In addition, there is no diagnosis that he suffered a concussion.  Thus, there is insufficient evidence that shows he sustained a concussion as a result of the incident.

   	(2)  The evidence of record shows the Purple Heart is awarded to any member who was wounded or injured as a result of a hostile act of the enemy.
(A wound is defined as an injury to any part of the body from an outside force.)
It also shows that a physical lesion is not required for award of the Purple Heart; however, it is necessary to establish the wound for which the award is being made required medical treatment.  Therefore, it is concluded the evidence of record supports the applicant's claim to a second award of the Purple Heart.

   c.  The applicant's request to correct his military medical records to reflect a medical condition (i.e., a concussion on either 18 or 20 May 1968) that was not diagnosed during his active service was also considered.  The Army has an interest in promoting the reliability of its medical records.  Alteration, addition, or creation of a diagnosis or treatment in those records after the fact may lead to fundamental questions about the veracity of the records in this case or any given case generally.  For these reasons, the Board declines to add an undiagnosed medical condition to the applicant's medical records.

2.  The evidence of record shows:

   a.  the applicant qualified for award of the Vietnam Service Medal and he participated in four campaigns during his service in Vietnam.  Thus, he is authorized four bronze service stars for wear on his already-awarded Vietnam Service Medal;

   b.  DAGOs awarded the applicant's unit the:

* RVN Gallantry Cross with Palm Unit Citation
* RVN Civil Actions Honor Medal First Class Unit Citation

   c.  SOs awarded the applicant the:

* Expert Marksmanship Qualification Badge with Recoilless Rifle Bar
* Marksman Marksmanship Qualification Badge with Pistol Bar

3.  The applicant served a period of continuous, honorable active duty enlisted service from 11 April 1967 through 24 January 1969.

   a.  There is no evidence of any disciplinary actions, adverse information, or a commander's disqualification for the first award of the AGCM.
   
	b.  He was promoted to SP4 (E-4) and he received "excellent" conduct and efficiency ratings during his service.
   
   c.  Based on the available evidence, it would be appropriate at this time to award the applicant the AGCM (1st Award).

4.  Therefore, it would be appropriate to correct the applicant's DD Form 214 to show his awards and decorations, as recommended below.

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.  awarding him the Army Good Conduct Medal (1st Award) for the period 
11 April 1967 through 24 January 1969 (Standard Name Line:  SP4, U.S. Army Personnel Center, Fort Lewis, Washington);

   b.  deleting the following awards from item 24 of his DD Form 214:

* Purple Heart
* VSM (Vietnam Service Medal)

   c.  adding the following awards to item 24 of his DD Form 214:

* Purple Heart (1st Oak Leaf Cluster)
* Army Good Conduct Medal (1st Award)
* Vietnam Service Medal with 4 Bronze Service Stars
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation
* Expert Marksmanship Qualification Badge with Recoilless Rifle Bar
* Marksman Marksmanship Qualification Badge with Pistol Bar

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 adding an additional diagnosis to his U.S. Army medical records.




      _______ _   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)                                         AR20140016711



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ABCMR Record of Proceedings (cont)                                         AR20140016711



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