BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150016692 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____x____ ____x____ __x______ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150016692 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is 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 from his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 20 January 1970 the Vietnam Service Medal, b. adding to item 24 of his DD Form 214 for the period ending 19 February 1964 the Korea Defense Service Medal, and c. adding the following awards to his DD Form 214 for the period ending 20 January 1970 – * Korea Defense Service Medal * Expert Marksmanship Qualification Badge with Rifle Bar (M-14) * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) * Vietnam Service Medal with one silver service star * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation 2. The Board further determined 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 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. BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150016692 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) for the period ending 20 January 1970 to show the Purple Heart and any additional awards to which he is entitled. 2. The applicant states: a. He served approximately 8 years of active duty in Korea, France, Germany, Vietnam, and the U.S. from 1962 to 1970. His rank was sergeant first class (SFC)/E-7 on the date of his discharge. b. His military and health records were not returned from Vietnam prior to his discharge in the U.S. due to a date eligible for return from overseas (DEROS) dispute and some records were lost until now. c. He was discharged from the Army on or about 20 January 1970. d. He filed for a correction of his military records in 2010. The Board corrected some of his records but instructed him to obtain more evidence and re-file for a list of authorized decorations. e. The Department of Veterans Affairs (VA) awarded him a 100 percent (%) service related disability rating for wounds he sustained during active service and for Agent Orange-related diabetes and heart disease. He has not submitted a claim for a Purple Heart in connection with any of his VA disability claims. The VA determined the injuries and maladies he submitted for his VA disability ratings were service-connected. f. He was not fully aware that the wounds and injuries he received during his military service from 1962 until 1970, including his tour of duty in Korea, qualified for the Purple Heart. He recently received evidence from the VA and the National Personnel Records Center in late 2014. g. In 2010, the Army advised him to compile evidence for decorations that he did not receive due to his missing records at the time of his discharge and then resubmit his request for the official authorization to receive and wear those decorations. h. The Disabled American Veterans counselors recently told him that he is entitled to receive the Purple Heart and other missing decorations. However, he realizes this determination cannot be finalized without the approval of the Department of the Army. Several years after his discharge, his Congressman located and delivered his missing medical records to the VA. After his discharge in 1970, he filed a disability claim with the VA. The VA said that the Army could not find his records. His Congressman later located some of his original medical records and forwarded them to the VA in Chicago, IL. Afterwards, the VA in Chicago sent his records to the VA in Philadelphia, PA. i. He filed for an increase in his VA disability in 1986 and the Philadelphia VA notified him that they had lost all of his original Army medical records and had not made any copies of them. After a long search for his records, he located some of his missing records with the help of a Congressman and a National Personnel Records Center (NPRC) employee. He filed for a correction of his military records in 2010. He received one change to his DD Form 214, but the Department of Army advised him that he had to file for the missing decorations at a different address and he needed to provide evidence. j. On or about 26 October 1962, he was a member of Headquarters and Headquarters Company, 1st Battalion, 31st Infantry (Bearcat), 7th Infantry Division. He was a private first class and 17 years old at the time. His military occupational specialty was 111.10 (Light Weapons Infantryman) at that time. They were on high alert due to the Cuban Missile Crisis and there was all kinds of North Korean Hostile Activity. (1) His company commander in Korea ordered him to climb mountain Soy San to pour tar down the face of the mountain cliff to hide a white painted marker, possibly an aiming point for the North Korean Artillery. While covering this marker with tar, an artillery explosion knocked him off the mountain. He was unconscious for a while and had a sharp pain in his lower back. His lieutenant asked if he was wounded and he replied that he hurt his back and felt woozy but he was otherwise unwounded. He asked his lieutenant where the artillery shell came from but his lieutenant did not know. His lieutenant said he was positive that it did not come from any American battery and opined that it most likely it came from a North Korean battery or from an old Chinese or North Korean mine. He went to the medic because he continued to experience back pain for weeks. The medics said that he damaged his back, probably suffering a severe sprain and a concussion. The medics gave him medication and returned him to duty. (2) It took about a month before the headaches from the concussion stopped and he could bend over properly. However, he continued to have back pain during the rest of his service. After his discharge, he applied for disability ratings and was eventually awarded 100% combined disability rating for the back injury and other service-connected maladies. k. At the time of his discharge in 1970, his records were in still in Vietnam because a personnel officer miscalculated his DEROS date. Consequently, his DD Form 214 had errors, which included not listing his Korean service. About 5 years later, he received an unsigned DD Form 215 (Correction to DD Form 214) adding another 12 months of foreign service in the U.S. Army Pacific to his DD Form 214. l. On 9 February 1968, he was assigned directly from Germany to Vietnam. He started out in the Infantry but he was eventually assigned to administrative duties. In 1967, the Army created a new force exclusively composed of support personnel. His commanding officer asked him if he would go to Vietnam and participate in the creation of new support personnel reactionary force. He agreed to go and was subsequently assigned to Vietnam. 3. The applicant provides: * Five Standard Forms (SF) 600 (Chronological Record of Medical Care, dated 10 August - 13 November 1962; 25 March 1963; 9 August - 26 September 1963; 29 June 1965; and 4 November - 21 December 1965 * Special Orders (SO) Number 274, dated 1 October 1962 * SO Number 238, dated 16 October 1962 * Memorandum, Subject: Completion of Course, dated 30 January 1963 * X-Ray request, from St. Francis Hospital, dated 25 March 1963 * SO Number 259, dated 2 October 1963 * DD Form 214 for the period ending 19 February 1964 * Certificate of Training, dated 26 February 1965 * Special Orders Number 63, dated 2 April 1965 * SF 513 (Consultation Sheet, dated 21 May 1965 * Radiographic Report, dated 20 September 1965 * Special Orders Number 20, dated 9 February 1968 * DA Form 305-3 (Army Personnel Roster), dated 8 April 968 * Memorandum, Subject: Request for Extension of Overseas Tour, dated 16 June 1968 * SO Number 320, dated 19 December 1968 * Letter Orders Number 4-1, dated 1 April 1969 * Memorandum, Subject: DEROS Adjustment, dated 1 April 1969 * Statement from spouse, dated 7 April 1969 * Department of the Army General Orders (DAGO) Number 21, dated 8 April 1969 * DA Forms 137 (Installation Clearance Record), dated 9 May 1969 and 16 January 1970 * Illegible SO, date illegible * Letter addressed to Commanding Officer, dated 26 June 1969 * Memorandum, Subject: Letter of Appreciation, dated 6 August 1969 * Illegible medical record, dated December 1969 * VA Form 21-2545 (Report of Medical Examination for Disability Evaluation), dated 30 July 1974 * VA Form 07-3110 (Request for Information), dated 22 August 1974 * Partial Medical document, dated 30 August 1974 * VA Form, Report of Contact, dated 12 June 1975 * SF 506 (Physical Examination), dated 6 October 1975 * Rating Decision, dated 23 January 1976 * Partial Medical document, dated in 1976 * VA hearing transcripts, dated 30 June 1976 * Rating Decision, 21 July 1976 * VA Form, dated 21 February 1978 * SF 507 (Clinical Record, dated 26 July 1978 * Lourdes Hospital Progress Record, dated 29 March 1979 * Deferred or Confirmed Rating Decision, dated 17 September 1979 * Deferred Decision Continuation Sheet, dated 1 May 1980 * Partial Medical Document, dated in 1980 * Self-authored letter, dated 11 April 1983 * VA Form 21-2507 (Request for Physical Examination), dated 2 May 1984 * VA Form 1158 (Doctors Orders), dated 20 December 1985 * VA From 10-7131 (Change of Beneficiary Information and Request for Administrative and Adjudicative Action), dated 18 August 1986 * Letter from the Director, Personnel Services, Office of the Adjutant General, dated 17 September 1986 * Letter from the National Personnel Records center, dated 1 June 1993 * Letter from the U.S. Army Reserve Personnel Center, dated 6 March 1996 * Congressional letters, dated 15 March 1996 * Army Board for Correction of Military Records (ABCMR), Memorandum of Consideration, Docket Number AC96-06999, dated 28 August 1996 * Letter from the VA, dated 12 May 1998 * Information Paper, dated 21 December 2010 * DD Form 215 (Correction to DD Form 214), dated 21 December 2010 * VA Form 10-5345a-MHV, dated 5 June 2014 * Department of Veterans Affairs Rating Decision, dated 20 June 2015 * Memorandum, Subject: Application for Missing Medals and Discharge Record Correction and list of exhibits, dated 20 August 2015 * Casework permission form, dated 9 September 2015 * Email transmissions, dated 11 September 2015, 21 September 2015 * Memoranda from the applicant to his Member of Congress, dated 16 September 2014 and 9 September 2015, * Congressional letter, dated 21 September 2015 * Correspondence from the Army Review Boards Agency to the applicant's Member of Congress, dated 29 September 2014 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 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 served in the U.S. Marine Corps prior to his enlistment in the Regular Army on 18 June 1962. 3. His DA Form 20 (Enlisted Qualification Record) shows he served in Korea from 1 October 1962 to 11 November 1963 (1 year, 1 month, 1 day). 4. The Army honorably discharged him from active duty on 19 February 1964 for immediate reenlistment. The DD Form 214 issued for this period shows he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-1). 5. He reenlisted on 19 February 1964. His DA Form 20 contains the following information: a. Item 29 (Qualification) shows he qualified as an Expert with the M-14 rifle in September 1967 and with the M-16 rifle in February 1968. b. Item 31 (Foreign Service) shows he completed overseas assignments in France from 4 July 1966 to 17 July 1967, Germany from 18 July 1967 to 16 February 1968, and Vietnam from 24 February 1968 to 18 May 1969. c. Item 33 (Appointments and Reductions) shows he was promoted to SFC/E-7 on 19 December 1968. d. Item 38 (Record of Assignments) shows he was assigned to Company D, 1st Battalion, 27th Infantry Regiment, 25th Infantry Division from 24 February to 20 July 1968 and Headquarters and Headquarters Company (HHC), 53rd General Support Group from 21 July 1968 to 18 May 1969 in Vietnam. There is no entry indicating he was hospitalized in a patient status. e. Item 40 (wounds) does not contain any entries indicating he was wounded in action. f. Item 41 (Awards and Decorations) does not contain an entry for the Purple Heart. 6. His service record does not include orders which show he was awarded the Purple Heart. The Vietnam casualty roster does not list his name. 7. A DA Form 1 (Morning Report) shows he was reassigned from the 36th Evacuation Hospital to his unit, HHC, 53rd General Support Group, on 14 December 1968. 8. DAGO Number 21, dated 8 April 1969, shows the 1st Battalion, 27th Infantry Regiment, 25th Infantry Division was cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period December 1965 to August 1968. He was assigned to this unit during this period. 9. The Army honorably discharged him on 20 January 1970. The DD Form 214 issued for this period shows the following awards: * National Defense Service Medal * Vietnam Service Medal * Republic of Vietnam Campaign Medal with Device (1960) * Armed Forces Expeditionary Medal * Army Good Conduct Medal (1st Award) * Army Commendation Medal 10. He provided a Standard Form 506 (Physical Examination) that shows he was examined on 6 October 1975 for an orthopedic evaluation for disability purposes. The Chief, Orthopedic Service, stated the applicant presented himself for evaluation because of low back pain. The applicant reported that his pain came on during childhood and was aggravated in Korea in 1962 while on active duty when he was knocked to the ground by an artillery shell explosion. The applicant was diagnosed with mild degenerative arthritis of the lumbosacral spine confined to the facet joint of L-5 – S-1. 11. He provided a Progress Record from Lourdes Hospital that indicates he was admitted on 28 March 1979 and discharged on 29 March 1979. His discharge diagnosis shows he sustained a gunshot wound to the stomach and facial wounds in Vietnam in 1969. 12. A DD Form 215 issued on 21 December 2010 amended item 22c (Foreign and/or Sea Service) on his DD Form 214 for the period ending 20 January 1970 to show 2 years and 10 months of foreign service. 13. He provided a VA letter, dated 20 June 2015 indicating he was granted 100% disability rating on 12 June 2014 for coronary artery disease and old myocardial infarction. The letter indicates this condition was assigned a 30% disability rating on 1 December 2014. 14. The applicant's name was not listed on the Vietnam Casualty Roster. 15. In a 21 September 2015 letter, the Awards and Decorations Branch, U.S. Army Human Resources Command, notified him that the ABCMR denied his request for the Purple Heart on 28 August 1996. He was advised that the Awards and Decorations Branch could not act upon cases that have had a formal determination rendered by the ABCMR. This office verified his entitlement to the following awards: * Army Commendation Medal * Army Good Conduct Medal * National Defense Service Medal * Vietnam Service Medal with one silver service star * Armed Forces Expeditionary Medal * Republic of Vietnam Campaign Medal with "60" Device * Republic of Vietnam Gallantry Cross Unit Citation with Palm Device REFERENCES: 1. 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 1st Battalion, 27th Infantry Regiment, 25th Infantry Division was cited for the: a. Republic of Vietnam Gallantry Cross with Palm Unit Citation for the period January 1966 to August 1968 by DAGO Number 48, dated 1971. b. Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 1 January 1966 to 21 January 1970 by DAGO Number 51, dated 1971. 2. Department of the Army Pamphlet 672-3 states not more than one Republic of Vietnam Gallantry Cross Unit Citation will be worn by any individual. Although multiple awards of this unit citation are not authorized for wear, official military and historical records will indicate all awards received. However, in the case of duplicate awards covering the same period of time only one award will be recorded in official military and historical records. 3. 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. 4. 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: * Tet Counteroffensive (30 January - 1 April 1968) * Vietnam Counteroffensive Phase IV (April - 30 June 1968) * Vietnam Counteroffensive Phase V (1 July - 1 November 1968) * Vietnam Counteroffensive Phase VI (2 November 1968 – 22 February 1969) * Tet 69/Counteroffensive (23 February - 8 June 1969) 5. Army Regulation 600-8-22 states the Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea. The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense. DISCUSSION: 1. The applicant's medical documentation from the VA indicates he has suffered from low back pain since 1962. During his physical examination in October 1975, he reported that his back pain began during his childhood and it was aggravated in Korea in 1962 while on active duty when he was knocked to the ground by an artillery shell explosion. 2. 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 [at the time of the wounding], and the treatment must have been made a matter of official record. 3. His Lourdes Hospital Progress Record shows he sustained a gunshot wound to the stomach and facial wounds in Vietnam in 1969. However, his service record is void of evidence indicating he sustained this injury as a result of hostile action. His name is not listed on the Vietnam Casualty Roster, and there is no indication that he was assigned to a military hospital in a patient status. In addition, his service record is void of orders, which confirm he was awarded the Purple Heart; his DA Form 20 does not list any wounds received in hostile action. 4. The evidence of record shows he served in Korea from 1 October 1962 to 11 November 1963. He served a period of qualifying service in Korea for award of the Korea Defense Service Medal. His DD Form 214 for the period ending 19 February 1964 has not been amended to reflect this award. 5. His DA Form 20 confirms he qualified as Expert with the M-14 rifle and the M-16 rifle. However, his service record does not show he was awarded the Expert Marksmanship Qualification Badge with M-14 and M-16 Rifle Bars and these marksmanship badges are not recorded on his DD Form 214 for the period ending 20 January 1970. 6. His DD Form 214 for the period ending 20 January 1970 currently reflects the Vietnam Service Medal; however, it does not reflect the authorized silver service star to denote his participation in five campaigns. 7. He provided Department of the Army General Orders Number 21 indicating the 1st Battalion, 27th Infantry Regiment, 25th Infantry Division was cited for the Republic of Vietnam Gallantry Cross with Palm Unit Citation during a period he was assigned to this unit. Additionally, the Department of the Army Pamphlet 672-3 shows this same unit was cited for the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation and the Republic of Vietnam Gallantry Cross with Palm Unit Citation. However, his DD Form 214 for the period ending 20 January 1970 does not reflect these awards. Although he received two awards of the Republic of Vietnam Gallantry Cross Unit Citation, in this case only one award is authorized to be recorded on the DD Form 214. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016692 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016692 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2