RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            22 JUNE 2004
      DOCKET NUMBER:   AR2003099031


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


  The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Jose Martinez                 |     |Member               |
|     |Mr. Lawrence Foster               |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 award of the Purple Heart.

2.  The applicant states he received shrapnel wounds during an
“unauthorized ambush” north of Saigon.  He states that he was not “dusted
of” but was sent to the hospital via a truck convoy the following day.

3.  He states that he should have applied for the Purple Heart when he was
granted his service connected disability rating for the shrapnel wound in
1970.

4.  The applicant provides a copy of his 1971 Department of Veterans
Affairs disability rating.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 30 December 1969.  The application submitted in this case
is dated 7 October 2003.

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 limitation 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.  Records available to the Board indicate that the applicant was inducted
and entered active duty on 28 May 1968.

4.  While undergoing training, he qualified as a marksman with the M-14
rifle and the M-60 machine gun, and was awarded the associated badge and
component bars.  He also qualified as a sharpshooter with the M-16
automatic rifle and was awarded that badge and component bar.  Orders
issued at Fort Lewis, Washington, confirmed the badges, however, all of
them were omitted from the applicant’s separation document.

5.  In December 1968, following completion of training, the applicant was
assigned to the 1st Battalion, 18th Infantry in Vietnam as an infantryman.


6.  In July 1969 the applicant was awarded two awards of the Air Medal.
The first award covered the period January 1969 to March 1969 and the
second covered the period March 1969 to June 1969.  Both awards were
confirmed in orders issued by the 1st Infantry Division; however, his
separation document reflects entitlement to only one Air Medal.

7.  In October 1969 the applicant was awarded an Army Commendation Medal
with “V” device for his heroic actions on 21 September 1969.  The award was
confirmed in orders issued by the 1st Infantry Division.  Although the
applicant was subsequently awarded a Bronze Star Medal for meritorious
service during his tour of duty in Vietnam, there is no indication he was
ever awarded another Army Commendation Medal.  His separation document,
however, merely indicates award of the Army Commendation Medal.  The “V”
device was apparently omitted from the form.

8.  The applicant returned to the United States in December 1969.  He was
released from active duty on 30 December 1969 under a program that
permitted the separation of overseas returnees.

9.  Although the applicant’s Department of the Army Form 20 (Enlisted
Qualification Record) reflects all of the applicant’s other awards and
decorations, including the Army Good Conduct Medal, it does not reflect
entitlement to the Purple Heart and item 40 (wounds) on the form is blank.
There were no service medical records available to the Board, or provided
by the applicant, and his name was not among a list of individuals reported
as combat casualties during the Vietnam War.

10.  In January 1971, according to a document contained in the applicant’s
file, he submitted an initial claim for disability compensation to the
Department of Veterans Affairs.  In that claim he states that he had
sustained a shrapnel wound to his left shoulder in March 1969 and received
medical treatment at a medical evacuation center.

11.  During his Department of Veterans Affairs physical examination,
conducted on 29 January 1971, he reported that in March 1969, while serving
in Vietnam, he was hit in the left shoulder by shell fragments from an
enemy claymore mine.  He stated that he was treated at an Army base camp
and was evacuated to a medical evacuation hospital for further treatment.
He states that after the wound healed, he returned to duty on a limited
basis.  The Department of Veterans Affairs examination noted “residuals of
shell fragmentation wounds of left shoulder with small superficial scars….”

12.  A subsequent Department of Veterans Affairs statement indicated that
the “records show that veteran sustained shrapnel wound of the left
shoulder in Feb. 1969.”  Ultimately, the applicant was granted a 30 percent
disability rating for “residuals of shell fragment wound left shoulder with
scars and retained metallic foreign bodies….”  The Department of Veterans
Affairs statement suggests that the applicant’s service medical records may
have been in their possession at the time of the applicant’s initial
disability examination.

13.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple
Heart is awarded for wounds sustained 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 a
medical officer, and the medical treatment must have been made a matter of
official record.

14.  United States Army Vietnam (USARV) Regulation 672-1 (Decorations and
Awards) provided, in pertinent part, for award of the Purple Heart.  The
regulation stated that authority to award the Purple Heart was delegated to
hospital commanders.  Further, 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.

15.  A review of Department of the Army Pamphlet 672-3 (Unit Citation and
Campaign Participation Credit Register) notes the applicant’s unit was
credited with participating in four designated campaigns (Vietnam
Counteroffensive Phases VI, TET 69 Counteroffensive, Vietnam Summer-Fall
1969, and Vietnam Winter-Spring 1970) during the applicant’s period of
assignment.  Four bronze service stars on the Vietnam Service Medal, which
is recorded on his separation document, should reflect his campaign
participation.  The unit was also awarded the Republic of Vietnam Gallantry
Cross Unit Citation with Palm and the Republic of Vietnam Civil Actions
Honor Medal First Class Unit citation during his tenure with the
organization.  The unit awards were also omitted from his separation
document.

DISCUSSION AND CONCLUSIONS:

1.  The fact that all of the applicant’s other awards are confirmed in
orders issued by the 1st Infantry Division while the applicant was in
Vietnam, including his Army Good Conduct Medal, it would be reasonable to
expect that had he been entitled to a Purple Heart that award would also
have been confirmed in orders.

2.  The absence of any service medical records, the fact that there is no
wound information recorded in item 40 on his Department of the Army Form
20, and that his name is not among the list of individuals reported as
combat causalities during the Vietnam War, is noted.  Unfortunately, it
would be inappropriate to award the applicant the Purple Heart, based
solely on information contained in a 1971 disability rating document, which
is not supported by evidence from any other official source.

3.  The information contained in the applicant’s Department of Veterans
Affairs rating documents suggest that his service medical records may be in
the possession of that agency.  The applicant is advised that he may wish
to secure any documents from his service medical records which may confirm
that he was, in fact, wounded as a result of hostile action while in
Vietnam and was treated by a medical officer.  Such documentation could
serve as a basis to grant the applicant’s request for award of the Purple
Heart.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 December 1969; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
29 December 1972.  However, the applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

5.  Evidence shows that the applicant’s records contain administrative
error which does not require action by the Board.  Therefore,
administrative correction of the applicant's records will be accomplished
by the Case Management Support Division (CMSD), St. Louis, Missouri, as
outlined by the Board in paragraph 3 of the BOARD
DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JS____  __MJ ___  ___FL___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.

3.  The Board determined that administrative error in the records of the
individual should be corrected.  Therefore, the Board requests that the
CMSD-St. Louis administratively correct the records of the individual
concerned to show two awards of the Air Medal, a “V” device on his Army
Commendation Medal, four bronze service stars on his Vietnam Service Medal,
entitlement to the Republic of Vietnam Gallantry Cross Unit Citation with
Palm and the Republic of Vietnam Civil Actions Honor Medal First Class Unit
citation and qualification as a marksman with the M-14 rifle and the M-60
machine gun, and as a sharpshooter with the M-16 automatic rifle.




            ______John Slone________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003099031                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040622                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |