RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 October 2005 DOCKET NUMBER: AR20050001681 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Mr. Carl W. S. Chun Director Mrs. Nancy L. Amos Analyst The following members, a quorum, were present: Ms. Barbara J. Ellis Chairperson Mr. Hubert O. Fry Member Mr. Robert Rogers Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests his records be corrected to reflect he was injured while in Vietnam while under hostile fire and that he was forced to go back to active duty after his injury. He also requests award of the Purple Heart. 2. The applicant states, in letters to the National Personnel Records Center (NPRC) and to the Department of Veterans Affairs (DVA), that, yes, he was just a cook, but they were in a full-blown war and cooks were expected to run back and forth loading artillery to be fired at the enemy. The record does not reflect what actually happened to him. The record should show it was not just a carton of C-rations that fell on him but a pallet of C-rations, weighing over a ton. On 18 July 1968, he was riding in the back of a truck when he heard gun fire and he got down low behind the cab of the truck. He heard a loud explosion. After the truck came to a halt he looked over and saw a boot but did not realize it was his boot. He realized later that during the explosion he had been hit by a pallet they were transporting on the back of the truck. His tibia and fibula were broken and his hip was twisted in an awkward position. 3. The applicant provides a letter to the NPRC dated 24 January 2005; a letter to the DVA dated 24 January 2005; and what appears to be a Medical Evaluation Board (MEB) Narrative Summary dated 19 December 1968. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged error or injustice which occurred on 18 April 1969. The application submitted in this case is dated 24 January 2005. 2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 3. The applicant was inducted into the Army on 2 November 1966. He completed basic combat training and advanced individual training and was awarded military occupational specialty 94B (Cook). 4. The applicant arrived in Vietnam on or about 18 February 1968 and was assigned to Battery B, 1st Battalion, 11th Artillery, 9th Infantry Division. He was medically evacuated from Vietnam on or about 27 August 1968. 5. The applicant's MEB Narrative Summary dated 19 December 1968 indicated he was injured on 18 July 1968 [while in Vietnam] when "a carton of C-rations fell on his left leg while riding in a truck." He was admitted to St. Albans Naval Hospital, New York on 4 August 1968 with a diagnosis of a closed fracture, left tibia and fibula. On admission he was essentially without complaints. At the present time (i.e., December 1968) he complained of essentially nothing except for the presence of a long leg cast on his left leg. As it was felt the applicant did not have a sufficiently healed fracture as yet and that physiotherapy would be required in the future, and the fact he was beyond his enlistment (sic) date, it was the opinion of the MEB that maximum benefits of hospitalization had been received and he should be referred to a Physical Evaluation Board (PEB) for disposition. The applicant appeared before the board in person, was informed of the MEB's findings, and did not desire to submit a statement in rebuttal. 6. The applicant remained assigned to St. Albans Naval Hospital in a patient status until he separated. 7. A DA Form 1361 (Recommended Finding of Physical Evaluation Board (Informal Hearing)) dated 30 January 1969 shows that an informal PEB found the applicant to be fit for military service. The applicant did not concur and demanded a formal hearing with personal appearance but, in the Signature of Member block (dated 5 February 1969), he did not sign the form. 8. Another DA Form 1361 dated 30 January 1969 shows that an informal PEB found the applicant to be fit for military service. The applicant concurred and waived a formal hearing of his case and, in the Signature of Member block (dated 19 February 1969), he signed the form. Both DA Forms 1361 indicate the applicant no longer required a cast and was ambulatory with only minimal ankle disability. 9. On 18 April 1969, the applicant was released from active duty upon his expiration term of service, in pay grade E-4, after completing 2 years, 5 months, and 17 days of creditable active service with no lost time. He had been retained in service for 168 days for the convenience of the Government. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded the National Defense Service Medal, the Republic of Vietnam Campaign Medal, the Vietnam Service Medal, the Expert Marksmanship Qualification Badge with rifle bar, and one overseas service bar. 10. The applicant's DA Form 20 (Enlisted Qualification Record) does not show entitlement to the Purple Heart and item 40 (Wounds) on his DA Form 20 is blank. The applicant's name does not appear on the Vietnam Casualty Roster. 11. The applicant's DA Form 20 shows he received "excellent" conduct and efficiency ratings during his period of service. There is no derogatory information in his records. 12. Records show the applicant participated in three campaigns during his assignment in Vietnam. 13. Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded to any member of an Armed Force who has been wounded or killed in any action against an enemy of the United States. The wound must have required treatment by a medical officer and records of medical treatment for wounds or injuries received in action must have been made a matter of official record. When contemplating an award of the Purple Heart, the key issue commanders must take into consideration is the degree to which the enemy caused the injury. The fact the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award. 14. A review of the historical files of Battery B, 1st Battalion, 11th Artillery, 9th Infantry Division at the National Archives in College Park, MD failed to reveal the applicant was injured as a result of hostile action. 15. Army Regulation 600-8-22, in pertinent part, authorizes award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal. 16. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam. This document shows that, at the time of the applicant's assignment to the 1st Battalion, 11th Artillery, it was cited for award of the Presidential Unit Citation for the period 7 March through 22 June 1968 by Department of the Army General Orders (DAGO) Number 60, dated 1969. 17. Department of the Army Pamphlet 672-3 shows that, at the time of the applicant's assignment to the 1st Battalion, 11th Artillery, it was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period 1 December 1966 through 30 June 1968 on DAGO Number 59, 1969. 18. Department of the Army Pamphlet 672-3 shows that, at the time of the applicant's assignment to the 1st Battalion, 11th Artillery, it was cited for award of the Republic of Vietnam Civil Actions Honor Medal, First Class Unit Citation for the period 19 December 1966 through 28 June 1969 on DAGO Number 59, 1969. 19. Army Regulation 672-5-1, in effect at the time, provided policy and criteria concerning individual military decorations. It 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 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. At the time, a Soldier’s conduct and efficiency ratings must have been rated as “excellent” for the entire period of qualifying service. DISCUSSION AND CONCLUSIONS: 1. The applicant's contentions have been carefully considered. Regrettably, due to the passage of time it cannot be verified that a pallet, rather than a carton, of C-rations fell on his leg. Nevertheless, the injuries he sustained while in Vietnam certainly should not be, and are not, trivialized. 2. Also regrettably, there is no evidence to show the applicant's injuries were the result of hostile action. When contemplating an award of the Purple Heart, the key issue commanders must take into consideration is the degree to which the enemy caused the injury. The applicant does not contend the truck in which he was riding, or its contents, was hit by weapons fire. The Board presumes the commander at the scene determined his injuries were caused by the enemy to an insufficient degree to justify award of the Purple Heart. 3. The applicant requested his records be corrected to show he "was forced to go back to active duty after his injury." His records show he was never taken off active duty. They also show he was retained in service for 168 days for the convenience of the Government, presumably to afford him military hospital care. 4. The evidence of record shows the applicant participated in three campaigns while in Vietnam. His records should be corrected to show he is eligible to wear three bronze service stars on the Vietnam Service Medal. 5. The evidence of record shows the applicant was assigned to a unit during a period of time that unit was awarded the Presidential Unit Citation, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal, First Class Unit Citation. These unit awards should be added to his DD Form 214. 6. The applicant was honorably released from active duty after completing 2 years, 5 months, and 17 days of creditable active service in pay grade E-4 with no lost time, no derogatory information in his records, and conduct and efficiency ratings of all "excellent. It appears he met the eligibility requirements for award of the Army Good Conduct Medal. 7. Records show the applicant should have discovered the alleged error or injustice now under consideration on 18 April 1969; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 18 April 1972. The applicant did not file within the ABCMR's 3-year statute of limitations; however, there is no statute of limitations on requests for award of the Purple Heart. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF __bje___ __hof___ __rr____ 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 and to excuse failure to timely file. 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 for the period 2 November 1966 through 18 April 1969; and b. amending his DD Form 214 to add the Army Good Conduct Medal, the Presidential Unit Citation, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal, First Class Unit Citation and to show he is eligible to wear three bronze service stars on the Vietnam Service Medal. 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 showing he was injured while in Vietnam while under hostile fire, that he was forced to go back to active duty after his injury, and awarding him the Purple Heart. __Barbara J. Ellis____ CHAIRPERSON INDEX CASE ID AR20050001681 SUFFIX RECON DATE BOARDED 20051019 TYPE OF DISCH DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION GRANT REVIEW AUTHORITY Mr. Schneider ISSUES 1. 107.0015 2. 3. 4. 5. 6.