IN THE CASE OF:	  

		BOARD DATE:	  7 May 2015

		DOCKET NUMBER:  AR20140017266 


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, spouse of a deceased former service member (FSM), requests the award of the Purple Heart and, in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show this award.

2.  The applicant states, in effect:

* the FSM was wounded in his left knee by shrapnel during an ambush while serving in Vietnam
* the ambush occurred outside Landing Zone (LZ) West near Hiep Duc, Vietnam
* the FSM was serving in Company A, 4th Battalion, 31st Infantry Regiment, 196th Infantry Brigade, 23rd Infantry Division
* the day he was wounded was very chaotic; he was told by a medic he would be receiving a Purple Heart for his wound
* the medic never submitted the FSM for the Purple Heart
* two weeks later he wrenched that same knee while exiting a helicopter
* the FSM was subsequently awarded service-connection for this wound by the Veterans Administration (VA)
* battle wounds entitle Soldiers to receive the Purple Heart, even posthumously; the applicant respectfully requests her now-deceased husband be given this award



3.  The applicant provides:

* DD Form 214
* letter from the FSM to his mother detailing the incident in which he was wounded
* two Standard Forms (SF) 513 (Consultation Sheet), dated 17 June 1970 and 3 July 1970, respectively
* SF 600 (Chronological Record of Medical Care) covering the period 20 October 1970 to 20 November 1970
* SF 507 (Clinical Record), dated 15 October 1971
* two pages extracted from VA Form 21-6796 (Rating Decision), dated 26 November 1971
* six pages of a DA Form 1594 (Daily Staff Journal or Duty Officer's Log), Battalion Tactical Operations Center (BTOC), 4th Battalion, 31st Infantry Regiment covering the period 0001 hours, 6 June 1970 to 2400 hours, 6 June 1970
* license and certificate of confidential marriage, dated 11 March 1989
* certificate of death, dated 21 September 1996

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 FSM was inducted in the Army of the United States on 17 September 1969.  After completing initial training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade held was specialist four/E-4.  

3.  He served in Vietnam from 26 February 1970 to 10 January 1971.  While in Vietnam he was assigned to Company A, 4th Battalion, 31st Infantry Regiment, 196th Infantry Brigade, 23rd Infantry Division.  

4.  He was honorably released from active duty on 17 June 1971.  His DD Form 214 shows he completed 1 year, 9 months, and 1 day of net active service.  It does not show the award of the Purple Heart.  It does show he was awarded or authorized the following:

* Army Commendation Medal
* Army Good Conduct Medal
* National Defense Service Medal
* Vietnam Service Medal with two bronze service stars
* Republic of Vietnam Campaign Medal with Device (1960)
* Combat Infantryman Badge
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14)
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)

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

	a.  Item 38 (Record of Assignments), no entries indicating the FSM was in a patient status during his tour in Vietnam.

	b.  Item 40 ( Wounds), no entry indicating he was wounded in action.

	c.  Item 41 (Awards and Decorations), no entry for the Purple Heart.

6.  His records are void of any orders showing the award of the Purple Heart.  Additionally there is no official Army message or a Western Union telegram notifying his next of kin of an injury or wound sustained in action.  This was the proper notification procedure for injuries at the time.

7.  His name is not shown on the Vietnam casualty listing.  This is a listing of Vietnam era casualties commonly used to verify entitlement to award of the Purple Heart.

8.  A 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 U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the FSM.  It did reveal General Orders Number 16290, dated 16 December 1970, issued by Headquarters, 23rd Infantry Division, which awarded the FSM the Soldier's Medal for heroic action to save the lives of two fellow Soldiers on 6 October 1970.



9.  The applicant provides:

	a.  A letter written by the FSM to his mother on 7 June 1970, the day after he was wounded.  He essentially states his unit lost three men the day prior and he received a small shrapnel wound on his left knee.  The unit medic told him he would be receiving a "slow badge," referring to the Purple Heart.

	b.  An extract from the FSM's medical records, dated between 17 June 1970 and 20 November 1970, which notes a fragment wound on the left knee incurred two weeks earlier (on or about 6 June 1970).  The FSM had removed the fragment but it had become infected.  Nowhere in the medical records does it state the wound resulted from the FSM's participation in combat against the enemy.

	c.  A clinical record from the VA Hospital in Long Beach, CA which describes a medical problem with the FSM's left knee and provides the FSM's recollection of how the injury was incurred.

	c.  VA Rating decision which recognizes service-connection for a fragment wound to the left knee and gave the FSM a 0 percent disability rating.

	d.  BTOC Daily Staff Journal or Duty Officer's Log, dated 6 June 1970, which recounts an engagement between the North Vietnamese Army and Companies A and D, 4th Battalion, 31st Infantry Regiment that occurred that day.  Log entry number 48, 1150 hours, describes small arms and mortar fire which resulted in Soldiers being both killed-in-action and wounded-in-action.  The entry shows the killed and at least some of the wounded-in-action were medically evacuated.  No names are provided.

10.  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 (emphasis added).  

11.  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 all units in Vietnam were awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Order Number 8, dated 1974.



DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the FSM be awarded the Purple Heart for a wound incurred on 6 June 1970.  His records do show he was wounded, received medical treatment, and that that treatment was made a matter of official record.  

2.  The regulation requires a wound to have been sustained as a result of hostile action or action against the enemy.

	a.  While the FSM's medical records, particularly for those portions written at or near the time the wound was incurred, do not explicitly identify this wound as resulting from combat with the enemy, its description as a fragment wound does clearly indicate it resulted from hostile action.

	b.  The BTOC Duty Log entry for 6 June 1970 does not identify any wounded Soldiers by name, but does affirm the FSM's unit was involved in action against the enemy.  Additionally, the letter by the FSM to his mother, penned 7 June 1970 (the day after this action), notes the wound as being sustained the day prior while participating in action against the enemy.

3.  The regulation requires the wound to have been treated and made a matter of official record.  

	a.  Although the available medical records do not contain entries made at the time the FSM was wounded, what is shown is treatment of that wound about two weeks later because of infection.  This record of treatment again confirms, albeit at a later point, the FSM was wounded, received treatment, and this treatment was made a matter of official record.

	b.  There are no entries on the FSM's DA Form 20 stating the FSM incurred a wound, no official Army message or a Western Union telegram notifying family that the FSM was wounded, and the FSM is not on the Vietnam Casualty List.  This is consistent with his description of his wound to his mother, wherein he minimized what had occurred.  Additionally, he apparently did not immediately seek follow-up treatment suggesting he did not perceive the wound as preventing him from performing his duties.  It is reasonable to assume, however, the wound was more serious than described based upon the infection that developed requiring subsequent medical treatment.  

4.  Based upon the foregoing, it would be appropriate to award the FSM the Purple Heart, and correct his DD Form 214 to reflect this award.  

5.  In reviewing the FSM's record, it is evident his DD Form 214 is missing additional awards.  He was awarded the Soldier's Medal for his heroic actions to save two fellow Soldiers.  Additionally, all units in Vietnam were awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Both awards should therefore be added to his DD Form 214.

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.  posthumously awarding the FSM the Purple Heart for a wound sustained on 6 June 1970; and

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

* Soldier's Medal
* Purple Heart
* 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)                                         AR20140017266



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ABCMR Record of Proceedings (cont)                                         AR20140017266



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