IN THE CASE OF:	  

		BOARD DATE:	  20 OCTOBER 2015

		DOCKET NUMBER:  AR20150003232 


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.

2.  The applicant states:

* he was wounded in Vietnam
* he was never awarded the Purple Heart
* he remembers very little about his time in Vietnam
* he doesn't remember his injury
* he was told his memory loss is due to an explosion and medication with morphine
* he was evacuated from Vietnam to Japan and then to the United States
* he has memory loss of his time in Vietnam due to post-traumatic stress disorder (PTSD)
* he was awarded service connected-disability for PTSD and shrapnel wounds from the Department of Veterans Affairs (VA)

3.  The applicant provides:

* VA Rating Decision, dated 18 October 2007
* DA Form 20 (Enlisted Qualification Record)
* Standard Form 88 (Report of Medical Examination)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 Army of the United States on 15 February 1968.  He completed his initial entry training and was awarded military occupational specialty 11C (infantry indirect fire crewman).

3.  He served in Vietnam from 18 July 1968 through on or about 4 January 1969 where he was assigned to Companies B and E, 2d Battalion, 8th Cavalry Regiment, 1st Cavalry Division (Airmobile).  He participated in two campaigns during this period.

4.  Headquarters, 1st Cavalry Division (Airmobile), Vietnam, Special Orders Number 256, dated 12 September 1968, awarded him the Combat Infantryman Badge.

5.  Item 38 (Record of Assignments) of his DA Form 20 shows:

* his principal duty in Vietnam was ammunition bearer in duty military occupational specialty 11C
* he was assigned to the Medical Holding Detachment, 249th General Hospital, Japan, as a patient effective 20 December 1968
* he was assigned to the Medical Holding Company, Ireland Army Hospital, Fort Knox, KY, as a patient effective 10 January 1969
* he received all "excellent" conduct and efficiency ratings

6.  Item 40 (Wounds) of his DA Form 20 shows the entry "MFW – L Arm 15 Dec 68 [multiple fragment wounds, left arm, 15 December 1968]" is crossed out.

7.  Item 41 (Awards and Decorations) of his DA Form 20 shows he was awarded or authorized the:

* National Defense Service Medal
* Vietnam Service Medal
* Combat Infantryman Badge
* Republic of Vietnam Campaign Medal with Device (1960)
* Expert Marksmanship Qualification Badge with Rifle Bar (M-14)

8.  His service medical records are not available for review.  They are presumed to be on loan to the VA.

9.  He provided an undated Standard Form 88 which shows he underwent a separation physical examination on or about 28 January 1970.  Block 35 (Upper Extremities) and block 39 (Identifying Body Marks, Scars, Tattoos) were rated abnormal with the following notes recorded by the examining physician:

* multiple scars left distal forearm area secondary to shell fragment wounds
* wound scar over left deltoid muscle
* scar on left fifth finger distal interphalangeal joint

10.  His records contain no adverse information or a commander's disqualification statement for the first award of the Army Good Conduct Medal.

11.  On 13 February 1970, he was honorably released from active duty.

12.  His DD Form 214 shows he was awarded or authorized the:

* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Combat Infantryman Badge

13.  His name is not listed on the Vietnam casualty roster.

14.  He provided a VA Rating Decision, dated 18 October 2007, which shows he was granted service connection for:

* PTSD – 50 percent
* shrapnel wound left forearm with residual scar and mild sensory changes – 10 percent
* retained shrapnel, left middle finger – 0 percent

15.  The VA Rating Decision states, in part, "SMR's [service member's records] show treatment for multiple shrapnel wounds to the left forearm, hand, and fingers in 1968 while in Vietnam.  The wound was treated properly and healed."

16.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9 of the version in effect at the time, stated a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization, would be entered in item 40 of the DA Form 20.  This regulation further stated the date the wound or injury occurred would also be placed in item 40.

17.  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 treatment by medical personnel, and the medical treatment must have been made a matter of official record.

	b.  There are three basic requirements for award of the Combat Infantryman Badge.  The Soldier must be an infantryman satisfactorily performing infantry duties, he must be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and he must actively participate in such ground combat.

	c.  A bronze service star is authorized with award of the Vietnam Service Medal for each campaign a member is credited with participating in.

18.  Army Regulation 672-5-1 (Awards), in effect at the time, stated the Army Good Conduct Medal 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.  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" rendered subsequent to 22 November 1955 were not disqualifying.  There must have been no convictions by a court-martial.  However, there was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in general orders.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was wounded in action in Vietnam.  His service medical records are not available for review.  They are presumed to be on loan to the VA.

2.  The evidence of record shows he was awarded the Combat Infantryman Badge on 12 September 1968 for satisfactorily performing infantry duties while assigned to an infantry unit in Vietnam during such time as the unit was engaged in active ground combat and actively participating in such ground combat.

3.  He was hospitalized in December 1968 and ultimately transferred to the United States for further medical treatment.

4.  An entry was made on his DA Form 20 showing he was wounded in action on 15 December 1968 and sustained multiple fragment wounds to his left arm, but the entry was subsequently crossed out on this form.  His records contain no documentation explaining when or why this entry was crossed out or by whom.

5.  During his separation physical examination, the examining physician noted multiple scars on his left distal forearm area, deltoid muscle, and left fifth finger secondary to shell fragment wounds.

6.  His VA Rating Decision states his service medical records show treatment for multiple shrapnel wounds to his left forearm, hand, and fingers in 1968 while serving in Vietnam.  In the absence of his service medical records, the statement by the VA is sufficient to verify the wounds required treatment by medical personnel and the medical treatment was made a matter of official record.

7.  His records contain no adverse information or documentation indicating his injuries were the result of misconduct on his part.  Although the entry on his DA Form 20 showing he was wounded in action on 15 December 1968 was crossed out, the absence of documentation of any misconduct related to his injuries in combination with his award of the Combat Infantryman Badge for satisfactorily performing infantry duties during such time as his unit was engaged in active ground combat is sufficient to conclude his injuries were the result of hostile action.  He appears to have met the eligibility criteria for award of the Purple Heart and any reasonable doubt should be resolved in his favor.

8.  He participated in two campaigns during his service in Vietnam and is authorized two bronze service stars with his award of the Vietnam Service Medal. 
These service stars are not shown on his DD Form 214.

9.  He was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-14).  This badge is not shown on his DD Form 214.

10.  He completed 1 year, 11 months, and 29 days of active service ending with his release from active duty on 13 February 1970.  He received all "excellent" conduct and efficiency ratings and his records contain no adverse information or a commander's disqualification statement for the first award of the Army Good Conduct Medal.  He appears to have met the eligibility criteria for the first award of the Army Good Conduct Medal.  This award is not shown on his DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, 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 exemplary behavior, efficiency, and fidelity during the period 15 February 1968 through 13 February 1970,

	b.  deleting award of the Vietnam Service Medal from his DD Form 214, and

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

* Army Good Conduct Medal (1st Award)
* Vietnam Service Medal with two bronze service stars
* Expert Marksmanship Qualification Badge with Rifle Bar (M-14)

2.  The Board further determined that the evidence presented is insufficient to warrant awarding the Purple Heart to the applicant.  The Board did not find evidence showing the applicant's injuries on or about 15 December 1968 were the result of hostile action and noted that the entry in item 40 of his DA Form 20 was lined through, indicating the wound he received may not have been received through hostile or enemy action.  The Board further noted that the applicant's name does not appear on the Vietnam casualty roster, a source routinely used to confirm the cause of an injury in the absence of other corroborating documentation.  The preponderance of the available evidence does not show he received a wound that met the criteria for award of the Purple Heart.  As a result, the Board recommends denial of so much of the application that pertains to correcting the record to show he was awarded the Purple Heart.  



      _________________________
                  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)                                         AR20150003232



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ABCMR Record of Proceedings (cont)                                         AR20150003232



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