IN THE CASE OF BOARD DATE: 8 June 2022 DOCKET NUMBER: AR20210014874 APPLICANT REQUESTS: award of the Purple Heart for injuries sustained while serving in the republic of Vietnam. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from the Armed Forces of the United States), ending on 23 November 1955 * DD Form 214 (Armed Forces of the U.S. Report of Transfer or Discharge), ending on 16 July 1964 and 15 May 1968 * Corporate Award and Rating Data, dated 1 July 2003 * VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative), dated 28 May 2021 * DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 25 November 1967 * DA Form 1361 (Recommended Findings of PEB), dated 25 November 1967 * DA Form 8-118 (Medical Board Proceedings), dated 24 October 1967 * Medical Documents 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 (ABCMR) 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 in pertinent part that he was injured while engaged in armed conflict with enemy combatants while serving in the Republic of Vietnam. 3. A review of the applicant's available service records reflects the following: a. On 24 November 1953, the applicant was inducted into the Army of the U.S. (AUS). b. On or about 22 September 1966, the applicant deployed to the Republic of Vietnam. c. On 10 May 1967, the applicant sustained a gunshot wound to his left knee. The records indicate that he was shot from behind by a fellow Soldier. d. On 1 December 1967, Headquarters U.S. Army Hospital Specialized Treatment Center issued Special Orders Number 235 reassigning the applicant pending separation orders. e. On 15 May 1968, the applicant was medically retired and placed on the Temporary Disability Retirement List (TDRL). DD Form 214, item 11a (Type of Transfer or Discharge) reflects "Retired"; item 11c. (Reason and Authority) reflects "Title 10, USC, Section 1202 (Regulars and Members on Active Duty for More Than 30 Days: TDRL); item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) reflects: * National Defense Service Medal * Vietnam Service Medal * Vietnam Campaign Medal with 1960 Device * Combat Infantryman Badge * Overseas Service Bar 4. The applicant provides the following a: a. DD Form 214, dated 23 November 1955, reflective of the applicant's service in the AUS from 24 November 1953 – 23 November 1955. b. DD Form 214, dated 16 July 1964, reflective of the applicant's service in the Regular Army (RA) from 17 July 1961 – 16 July 1964. c. Corporate Award and Rating Data, dated 1 July 2003, reflective of the applicant's current compensation percentages as awarded by the Veterans Administration (VA). The applicant is rated as 30 percent disabled for injuries related to his gunshot wound; overall rating of 60 percent. d. VA Form 21-22, dated 28 May 2021, reflective of the applicant authorizing the VA to release treatment information to the FL Department of Veterans Affairs. e. DA Form 199, dated 25 November 1967, reflective of the applicant being found unfit for continued military service based on 3 performance limiting conditions. Item 16 provides that the applicant's disability resulted from an injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty. f. DA Form 1361, dated 25 November 1967, reflective of the applicant being placed on the TDRL with a disability rating of 50 percent. The applicant concurred with the board's findings and waived his right to a formal hearing. g. DA Form 8-118 dated 24 October 1967, reflective of the applicant sustaining fractures to his left leg due to the gunshot wound which resulted in decreased range of motion. Due to this performance limiting condition, the applicant was referred to a PEB. h. Medical Documents reflective of the applicant's treatment history associated with the accidental gunshot wound to his left knee that he sustained on 10 May 1967. At approximately 0630 hours, while the applicant was on patrol in the Republic of Vietnam, he was shot from behind by another U.S. Soldier. The applicant was treated and medically evacuated back to the U.S. for follow up care. 5. Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Awards and Decorations Branch of the U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart. 6. The applicant's name is not reflected on the Vietnam Casualty Roster. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition and available military records the Board determined there is sufficient evidence that showed the applicant had a gunshot wound to his left knee that he sustained on 10 May 1967. At approximately 0630 hours, while the applicant was on patrol in the Republic of Vietnam, he was shot from behind by another U.S. Soldier. The applicant was treated and medically evacuated back to the U.S. for follow up care. The Board determined based on the amendment to the rules governing award of the Purple Heart under the Department of Defense Appropriations Act for fiscal year 1994, the applicant met the criteria for award of the Purple Heat. 2. Additionally, the Board determined the applicant served in the Republic of Korea from April 1963 to October 1965 and his record was absent award of the Korea Defense Service Medal. Furthermore, the Board determined the applicant’s record was absent award of the Army Good Conduct Medal (2nd and 3rd award) for exemplary service. Based on this, the Board granted relief to award the Purple Heart, Korea Defense Service Medal and the Army Good Conduct Medal (2nd and 3rd award). 3. 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 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: In addition to the administrative notes annotated by the Analyst of Record (below the signature), the Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 for the period ending May 15, 1968, to show award of the * Purple Heart * Korea Defense Service Medal (KDSM) and * Army Good Conduct Medal (2nd Award) for exemplary service from 17 July 1961 -to 16 July 1964 and adding the medal to his DD Form 214 for the period ending 16 July 1964 * Army Good Conduct Medal (3rd Award) for exemplary service from 17 July 1964 to 15 May 1968 and adding this to his DD Form 214 for the period ending 15 May 1968. 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 records shows he is authorized additional awards not annotated on his DD Form 214 for the period ending 15 May 1968. As a result, amend his DD Form 214 by adding: * Vietnam Counteroffensive Phase II * Vietnam Counteroffensive Phase III * Republic of Vietnam Gallantry Cross with Palm Unit Citation Delete Vietnam Service Medal Add – Vietnam Service Medal w/ 2 bronze stars REFERENCES: 1. Title 10, USC, 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. 2. Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action. 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. The award is limited 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: (1) In any action against an enemy of the United States. (2) 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. (3) 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. (4) As the result of an act of any such enemy of opposing Armed Forces. (5) As the result of an act of any hostile foreign force. (6) Servicemembers who are killed or wounded in action by friendly fire. The Secretary of the Army will treat a Service member of the Armed Forces in the same manner as a Service member who is killed or wounded in action as the result of an act of an enemy of the United States. 3. Included as part of the Department of Defense Appropriations Act for fiscal year 1994 was an amendment to the rules governing award of the Purple Heart. While the original rules established that the Purple Heart would be awarded to individuals killed or wounded as a result of hostile action the amendment enabled the Secretaries of each department to award the Purple Heart to members of the armed forces who were killed or wounded in action by weapons fire, while directly engaged in armed conflict, other than as the result of an act of an enemy of the United States. This ruling granted the service Secretaries the authority to award the Purple Heart to individuals directly engaged in armed conflict who were killed or wounded as a result of "friendly fire." //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210014874 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1