BOARD DATE: 5 April 2018 DOCKET NUMBER: AR20160006346 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :mde :SOS :QAS GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 5 April 2018 DOCKET NUMBER: AR20160006346 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) to show award of the Purple Heart and the Combat Infantryman Badge. 2. The applicant states that he served in the Republic of Vietnam (RVN) and he was assigned to Company E, 4th Battalion, 21st Infantry Regiment. a. On 15 December 1970, while at Landing Zone Charlie Brown, he was given a certificate awarding him the Combat Infantryman Badge. However, the Combat Infantryman Badge is not recorded on his DD Form 214. b. On 10 February 1971, while on a patrol, the patrol leader ordered the point man into a cave to check it out. He also ordered the applicant to take a position above the cave as a lookout. The point man came out of the cave firing his M-16 rifle and wounded the applicant in the left elbow. The applicant adds that the point man thought he was a North Vietnamese Army soldier. While the applicant was in the hospital, a general officer presented him the Purple Heart. However, a sergeant who was with the general told him that the applicant was shot by the point man (i.e., "friendly fire") and the general took back the Purple Heart. c. He also states he was improperly retained in the U.S. Army for 114 days beyond the date of his expiration term of service (ETS). A commissioned officer assured him they would expeditiously process him for separation. As a result, his DD Form 214 is missing the Purple Heart and Combat Infantryman Badge. 3. The applicant provides two self-authored statements (summarized above) and copies of his DD Form 214 and military medical records that he obtained from the Department of Veterans Affairs (VA). 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 27 March 1970. He was awarded military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman). 3. His DA Form 20 (Enlisted Qualification Record), in pertinent part, shows – * item 29 (Qualification in Arms), is blank (i.e., no entries) * item 31 (Foreign Service) – * Vietnam from 23 August 1970 through 14 February 1971 * Japan from 15 February 1971 through 5 March 1971 * item 38 (Record of Assignments) – * Student – 23rd Administration Replacement Detachment from 4 September 1970 through 10 September 1970 * Ammunition Bearer – Company E, 4th Battalion, 21st Infantry, 11th Brigade, from 11 September 1970 through 13 February 1971 * Patient – Medical Hold Company, U.S. Army Hospital, Camp Zama, Japan, from 14 February 1971 through 3 March 1971 * Patient – enroute to the continental United States, 4 March 1971 * Patient – U.S. Army Medical Hold Detachment, Great Lakes, IL, from 5 March 1971 through 9 May 1971 * Item 40 (Wounds), is blank (i.e., no entries) * item 41 (Awards and Decorations) – * National Defense Service Medal * Vietnam Service Medal * Army Commendation Medal * RVN Campaign Medal * 1 Overseas Service Bar * Marksman Marksmanship Qualification Badge with Rifle (M-16) Bar * Expert Marksmanship Qualification Badge with Pistol (.45 caliber) Bar * First Class (Sharpshooter) Marksmanship Qualification Badge with Mortar (81 millimeter) Bar * Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar 4. Headquarters, U.S. Army Training Center, Fort Campbell, KY, Special Orders (SO) Number 131, dated 12 May 1970, awarded the applicant the Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) Bar. 5. SOs issued by Headquarters, U.S. Army Training Center, Infantry, Fort Polk, LA, pertaining to the award of qualification badges to the applicant show – * SO Number 174, dated 27 June 1970, awarded him the – * First Class Marksmanship Qualification Badge with Mortar Bar * Expert Marksmanship Qualification Badge with Pistol Bar * SO Number 181, dated 6 July 1970, awarded him the Expert Marksmanship Qualification Badge with Grenade Launcher (M-79) Bar 6. Headquarters, Americal Division, General Orders Number 14949, dated 12 November 1970, awarded the applicant the Army Commendation Medal for meritorious achievement from 1 July 1970 to 31 October 1970. 7. The applicant's DD Form 214 shows he entered active duty this period on 27 March 1970, was honorably released from active duty on 2 February 1973, and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his Reserve service obligation. a. He had completed 2 years, 3 months, and 17 days of net/total active service this period that included 6 months and 13 days of foreign service. b. Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the – * National Defense Service Medal * 1 Overseas Service Bar * Army Commendation Medal * Vietnam Service Medal * RVN Campaign Medal c. Item 30 (Remarks), in pertinent part, shows – * 174 days of time lost (25 April 1971 – 2 May 1971; 13 October 1971 – 26 March 1972) * 25 days subsequent to normal ETS (27 March 1972 – 20 April 1972) * retained in the service 114 days for convenience of the Government 8. On 31 May 1973, the Deputy, Congressional Inquiry Division, responded to a U.S. Congressman's inquiry on behalf of the applicant pertaining to him being erroneously retained on active duty. He noted the applicant should have been released from active duty on 10 October 1972. However, due to oversight, he was not released until 2 February 1973 when the error was discovered. The period he served following his proper release date was determined to have been a constructive (i.e., voluntary) enlistment. He explained a constructive enlistment is consummated if the individual voluntarily submits to military authority, performs military duties, receives pay for such service, and if the Government accepts such services. 9. A review of the applicant's military personnel record failed to reveal evidence of a casualty or serious incident report. It also failed to reveal orders or evidence that he was recommended for or awarded the Combat Infantryman Badge or the Purple Heart. 10. In support of his application the applicant provides copies of his military medical records that, in pertinent part, show a: a. Standard Form (SF) 600 (Chronological Record of Medical Care), dated 21 July 1971, that shows, "Patient claims he had a profile for light duty of left arm. He received a wound from M-16 rifle while in RVN and was treated at Great Lakes Naval Hospital where he received the profile. However, his records contain no profile, so presumably they were not forwarded." It also shows the entry, "Well healed scar, good function." b. SF 516 (Radiographic Report), dated 21 July 1971, that shows – * Pertinent Clinical History, Operations, Physical Findings, and Provisional Diagnosis: History trauma to left elbow – Gunshot Wound (GSW), 10 May (sic) 1971 * Radiographic Report: Left Elbow: There is a fracture deformity along the lateral epicondyle which extends to the distal articular surface of the capitellum. No radiopaque foreign bodies are present. There is deformity of the capitellum and the articular surface. * Impression: Old injury to the lateral aspect of the distal humerus with fracture deformity of the later epicondyle. c. SF 513 (Clinical Record – Consultation Sheet), dated 6 August 1971, that shows – * Reason for Request: Post wound left elbow area * Consultation Report: February 1971, Gunshot wound, left elbow – Now Pain d. DA Form 3349 (Medical Condition – Physical Profile Record), dated 22 September 1971, that shows the applicant was issued a 60-day temporary profile for his upper extremities based on "arthritis, left elbow." e. SF 88 (Report of Medical Examination), dated 28 December 1972, prepared on the occasion of the applicant's ETS examination that shows in – * item 39 (Identifying Body Marks, Scars, Tattoos), a checkmark in the column indicating "Abnormal" and the entry, "Scar L[eft] Elbow" * item 73 (Notes and Significant or Interval History), the applicant entered, "was shot in left elbow" along with his signature * item 75 (Recommendation–Further Specialist Examinations Indicated), the examining physician entered, "Ortho[pedics] for L[eft] elbow" * item 77 (Examinee), the examining physician found the applicant qualified for separation f. SF 513, completed on 11 January 1973 at the Orthopedic Clinic, Irwin Army Hospital, Fort Riley, KS, that shows in the – * Reason for Request: "Shot left elbow. Some residual stiffness. Please evaluate for ETS." * Consultation Report: "No change from previous status. OK for discharge." 11. A review of The Adjutant General's Office, Casualty Division's Vietnam Casualty Roster failed to reveal the applicant is listed (i.e., neither his name or social security number) as a casualty. 12. A request for a search 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 U.S. Army Human Resources Command, Awards and Decorations Branch, failed to return any additional award orders pertaining to the applicant. REFERENCES: 1. Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations. a. The Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action. The Purple Heart is also awarded to individuals wounded or killed as a result of "friendly fire" in the "heat of battle" as long as the "friendly" projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment. 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. b. U.S. Army Vietnam Regulation (USARV) 672-1 (Decorations and Awards) stated the authority to award the Purple Heart was delegated to hospital commanders. It directed that all personnel treated and released within 24 hours would be awarded the Purple Heart by the organization to which the individual was assigned. Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam would be awarded the Purple Heart directly by the hospital commander rendering treatment. c. The Combat Infantryman Badge is awarded to infantry officers and to enlisted Soldiers who have an infantry MOS. They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size. d. The Vietnam Service Medal (VSM) 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 VSM for participation in each credited campaign. e. Appendix B contains a list of Vietnam Conflict campaigns. During the applicant's service in Vietnam, participation credit was awarded for the Vietnam Counteroffensive Phase VII (1 July 1970 - 30 June 1971) campaign. 2. Department of the Army Pamphlet 672-3 lists awards received by units serving in Vietnam. It shows Department of the Army General Orders 8 (1974) announced award of the RVN Gallantry Cross with Palm Unit Citation to Headquarters, USARV and its subordinate units during the period 20 July 1965 to 28 March 1973. DISCUSSION: 1. The applicant contends, in effect, that his records should be corrected to show award the Purple Heart because he sustained a GSW to his left elbow in RVN on 10 February 1971 and he was presented the award by a general officer when he was a patient in the hospital, but it was taken back when the general learned that his wound was the result of "friendly fire." He also requests award of the Combat Infantryman Badge. 2. The sincerity of the applicant's comments concerning the injury he sustained in RVN and the subsequent presentation of the Purple Heart is not in dispute. a. However, there are no casualty or serious incident reports pertaining to the incident under review. In addition, there are no orders or other evidence of record that corroborate his statement that he was awarded the Purple Heart and it was taken back. b. The applicant provided copies of his military medical records, which offer evidence that he sustained a GSW from an M-16 rifle on 10 February 1971 while serving in RVN. However, the medical records he provided did not include any contemporaneous records of the medical treatment he received in RVN or Japan that might provide information on how the incident occurred. c. The medical records he provided were prepared more than five (5) months after the incident under review and do not offer evidence to establish the circumstances surrounding the injury he received. 3. There are no orders or other evidence that shows the applicant was awarded the Combat Infantryman Badge. a. The applicant served in RVN in an infantry MOS and he was assigned to an infantry unit (Company E, 4th Battalion, 21st Infantry) on 11 September 1970. b. He was eligible for award of the Combat Infantryman Badge during the period of his assignment to the unit. c. General orders awarded him the Army Commendation Medal for meritorious achievement through to 31 October 1970. d. The available evidence supports a conclusion that his service met the criteria for award of the Combat Infantryman Badge. 4. The evidence of record also shows: a. the applicant qualified for award of the VSM, he participated in one campaign during his service in Vietnam, and he is authorized one bronze service star for wear on his already-awarded VSM. b. Department of the Army General Orders awarded his unit the RVN Gallantry Cross with Palm Unit Citation. c. special orders awarded him the – * Expert Marksmanship Qualification Badge with Pistol (.45 caliber) and Grenade (M-79) Bars * Sharpshooter Marksmanship Qualification Badge with Rifle (M-14 and M-16) and Mortar (81 millimeter) Bars BOARD DATE: 5 April 2018 DOCKET NUMBER: AR20160006346 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. awarding him the Combat Infantryman Badge (1st Award) for satisfactorily performing infantry duties during the period 23 August 1970 to 31 October 1970 (Standard Name Line: PFC, Company E, 4th Battalion, 21st Infantry Regiment, 11th Brigade, U.S. Army Vietnam); and b. amending his 2 February 1973 DD Form 214 by – * deleting the Vietnam Service Medal * adding – * Vietnam Service Medal with 1 Bronze Service Star * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Combat Infantryman Badge * Expert Marksmanship Qualification Badge with Pistol and Grenade Bars * Sharpshooter Marksmanship Qualification Badge with Rifle and Mortar Bars ? 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006346 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006346 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2