ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  4 September 2019

	DOCKET NUMBER:  AR20170014977


APPLICANT REQUESTS:  to be awarded the Purple Heart. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* National Personnel Records Center Letter, dated 6 January 2017

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states he never received a Purple Heart for his injury.  He was told that he would.  During a rocket attack in Chu Lai, Vietnam he was running to a bunker and his toe nail (left foot next to little toe) was ripped off.  He crossed over a metal grate, this injury was a direct result of enemy fire.  The medic at the station said that he would put him in for a Purple Heart.  At the time he did not realize the impact it would have on his Department of Veterans Affairs (VA) benefits.  He tried to get his records from the National Personnel Records Center (NPRC) but they said they did not have the records that the VA had them but the VA does not have them either.

3.  The applicant provides an (NPRC) letter, dated 6 January 2017 which states they did not have the original medical record he inquired about and they referred him to the VA Regional Office to obtain copies of the records.

4.  A review of the applicant’s service records shows:

	a.  He was inducted on 19 August 1968, into the Army of the United States.

	b.  He served in Vietnam from 19 April 1969 to 3 April 1970; he was assigned to Troop F, 8th Cavalry, 123rd Aviation Battalion and he held the military occupational specialty 67N (UH-1 Utility Helicopter Repairer).
	c.  His available records contain no documentation of wounds or injuries incurred during his service in Vietnam.  His name is not shown on the Vietnam casualty roster, and Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) contains no entries.

	d.  His records do not contain an official Army notification or a Western Union telegram notifying his next of kin of an injury.  This was a normal notification procedure during the Vietnam War.

	e.  His General Orders (GO) Number 9637, issued by Headquarters (HQ), American Division, dated 22 September 1969, awarded him the Air Medal for the period of 
24 June 1979 to 30 July 1969.

	f.  His GO Number 3516, issued by HQ, American Division, dated 6 April 1970, awarded him the second Air Medal Award for the period of 30 July 1969 to 
1 March 1970.

	g.  On 3 April 1970, he was released from active duty honorably and transferred to the U.S. Army Reserve (USAR) Control Group.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) does not show award of the Purple Heart.  It shows he completed 1 year, 7 months and 15 days of active service,
11 months and 14 days of foreign service in U.S. Army Pacific Command from 19 April 1969 to 3 April 1970.  It also shows he was awarded or authorized:

* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge with (M-14)
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* Expert Marksmanship Qualification Badge with Grenade Bar
* Vietnam Service Medal 
* Air Medal
* Vietnam Campaign Medal
* Army Commendation Medal
* Overseas service ribbon (2)

5.  A review of the Awards and Decorations Computer-Assisted Retrieval Systems, an index of general orders issued during the Vietnam era between 1965 and 1973 and maintained by the U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart for the applicant.

6.  By regulation United States Army Vietnam (USARV) 672-5-1 (Awards): 

   a.  the criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify:

* the injury/wound was the result of hostile action
* the injury/wound must have required treatment by personnel
* the medical treatment must have been made a matter of official record

	b.  Army Good Conduct Medal (AGCM) criteria states any one of the following periods of continuous enlisted active Federal military service qualifies for award of the GCM:
* each 3 years completed on or after 26 August 1940
* for first award only, 1 year served entirely during the period 7 December 1941 to 2 March 1946
* for first award only, upon termination of service on or after 27 June 1950, of less than 3 years but more than 1 year
* all conduct (character) and efficiency ratings recorded as “excellent”

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found the requested relief was warranted.  The applicant’s contentions were carefully considered.  The Board agreed he was injured by accident during the incident described in which he contends he should be awarded the Purple Heart.  Regulatory guidance provides wounds received accidently does not entitle members to the Purple Heart.

However, the Board did determine the applicant met regulatory guidance to be awarded the Army Good Conduct Medal for his service.

Additionally, prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X	X	X	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1. The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
2.  However, prior to closing the case, the Board determined the evidence in the military service record was sufficient to warrant a recommendation for other relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding him the Army Good Conduct Medal (1st Award) for exemplary service from 19 August 1968 through 3 April 1970, and amending his DD Form 214 for the period ending 3 April 1970 by:

     a.  deleting the Vietnam Service Medal

     b.  adding the following:

* Air Medal (2nd Award)
* Army Good Conduct Medal (1st Award)
* Vietnam Service Medal with 3 bronze service stars
* Republic of Vietnam Gallantry Cross Unit Citation with Palm
* Valorous Unit Award


	 
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.



ADMINISTRATIVE NOTE(S):

A review of the applicant’s service records show he is authorized an additional award not annotated on his DD Form 214.  As a result amend his DD Form 214 by deleting the Vietnam Service Medal and Air Medal and adding:

* Air Medal, 2nd Award, General Order Number 9637, dated 22 September 1969 for the period of 24 June 1969 to 30 July 1969; and General Order Number 3516, dated 6 April 1970 for the period of 30 July 1969 to 1 March 1970 issued by HQ American Division
* Vietnam Service Medal with 3 bronze service stars 
* Republic of Vietnam Gallantry Cross Unit Citation with Palm, Department of the Army General Order (DAGO) 42, 1972 for 24 August 1969 to 31 December 1969 and 31 March to 30 June 1970
* Valorous Unit Award, DAGO 43, 1972, for the period of 11-31 August 1969

REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is an entitlement and differs from all other awards.

	a.  The Purple Heart is awarded to members of the Armed Forces of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, have been wounded, were killed, or who have died or may hereafter die of wounds received under any of the following circumstances:

* in any action against an enemy of the United States;
* in any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged;
* while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party;
* as the result of an act of any such enemy of opposing Armed Forces;
* as the result of an act of any hostile foreign force;

	b.  The key issue commanders must take into consideration when contemplating an award of this decoration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.

	c.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows:

* frostbite (excluding severe frostbite requiring hospitalization from 7 December 1941 to 22 August 1951)
* trench foot or immersion foot
* heat stroke
* food poisoning not caused by enemy agents
* chemical, biological, or nuclear agents not released by the enemy
* battle fatigue
* disease not directly caused by enemy agents
* accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action
* self-inflicted wounds, except when in the heat of battle and not involving gross negligence
* post-traumatic stress disorder
* airborne (for example, parachute/jump) injuries not caused by enemy action
* hearing loss and tinnitus (for example, ringing in the ears)
* mild traumatic brain injury or concussions that do not either result in loss of consciousness or restriction from full duty for a period greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function
* abrasions and lacerations (unless of a severity to be incapacitating)
* bruises or contusions (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer)
* soft tissue injuries (for example, ligament, tendon, or muscle strains, sprains, and so forth) first degree burns

	d.  Army Regulation Vietnam (USARV) 672-5-1, states The Army Good Conduct Medal was awarded, 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.  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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170014977


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