RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           27 APRIL 2004
      DOCKET NUMBER:   AR2003099542


      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. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Patrick J. McGann, Jr.        |     |Member               |
|     |Ms. Marla J. N. Troup             |     |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, that his separation
document be corrected to show that he is and was a United States citizen,
and that his permanent mailing address on his separation document also be
updated to reflect his current address.

2.  The applicant states, in effect, that he is a United States citizen.
He states that his mother was married to an American Army sergeant and that
he married an American citizen and as such, that makes him an American
citizen.

3.  He also states that he was wounded while in Vietnam but never
complained of his injuries.  He states that now he is very sick.

4.  The applicant also identifies the current address he would like
recorded on his separation document.

5.  The applicant provides a copy of his marriage certificate and a copy of
a 1999 pathology report which identified a “small nodule present many
years” and when removed showed “fragment of soft tissue in which the
metallic fragment was embedded….”

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of errors which occurred on
27 February 1970.  The application submitted in this case is dated 26
September 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 enlisted and
entered active duty on 28 February 1968.  His enlistment document, which he
authenticated, indicated that he was born in Mexico and that he was not a
United States citizen.  His statement of personal history, which was
handwritten by the applicant, indicated that he came to the Untied States
in 1952.  It identified his step-father as a United States citizen and his
mother, whose date and place of birth were left blank, as also a United
States citizen.  He indicated that he derived his citizenship from his
parents and entered a certificate number, the date and court in New York
where the certificate was filed.  However, his record of emergency data
indicates that the location of his biological father was unknown.  The
marriage certificate, provided by the applicant, indicates he married his
current spouse in 1995 and that she was born in the United States.

4.  The applicant’s 1968 National Agency Check contains a label which notes
that the applicant’s “citizenship” was not verified.

5.  Army Regulation 380-67, which established the policies and provisions
for the Army’s Personnel Security Program notes that United States
citizenship can be established by:

      a.  native born – a person born in one of the 50 United States,
Puerto Rico, Guam, American Samoa, Northern Marina Island, U.S. Virgin
Islands, or Panama Canal Zone (if the father or mother (or both) was or is
a citizen of the United States).

      b.  naturalized – a person born outside the United States who has
completed naturalization procedures and has been given U.S. citizenship by
duly constituted authority.

      c.  derivative birth – a person born outside the United States who
acquires U.S. citizenship at birth because one or both of his or her
parents are U.S. citizens at the time of the person’s birth.

      d.  derivative naturalization – a person who acquires U.S.
citizenship after birth through naturalization of one or both parents.

6.  The applicant successfully completed basic and advanced individual
training.  Following completion of training, the applicant was assigned to
Vietnam in July 1968 where he performed duties with the 1st Battalion, 12th
Cavalry.  The applicant remained in Vietnam until July 1969.  Prior to
departing Vietnam, he was awarded the Combat Infantryman Badge and an Army
Commendation Medal.

7.  The applicant completed his enlistment contract at Fort Polk, Louisiana
and on 27 February 1970 he was released from active duty with an honorable
characterization of service.  His separation document, which he
authenticated, indicates he was not a United States citizen and item 31
(permanent address for mailing purposes after transfer or discharge)
reflects an address on Chandler Avenue in Staten Island, New York.

8.  The medical statement, provided by the applicant, does not identify the
source of the metallic fragment extracted from the “nodule” on his skin.
There were no service medical records available to the Board and item 40
(wounds) on the applicant’s Department of the Army Form 20 (Enlisted
Qualification Record) is blank.  The applicant last authenticated the
information contained on the Department of the Army Form 20 in September
1969.  The applicant’s name is also not among a list of individuals
reported as combat casualties during the Vietnam War.

9.  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.

10.  Army Regulation 635-5, which establishes the policies and provisions
for the preparation and distribution of the Department of Defense Form 214
(Armed Forces of the Untied States Report of Transfer or Discharge) stated
at the time, that item 31 will reflect a permanent address for mailing
purposes.  The “permanent” address serves as a basis for contacting a
soldier within a short time after separation in the event the need arose.
It was not intended to be changed or updated each time the individual
relocated following separation.

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

DISCUSSION AND CONCLUSIONS:

1.  Unfortunately, there is insufficient evidence available to confirm if
the applicant was in fact a United States citizen at the time of his
separation from active duty in 1970.  He would not have acquired
citizenship merely because his mother, or he, married a United States
citizen.

2.  If the applicant were a United States citizen, it appears from
available information that it would have been derived through
naturalization of his mother or biological father.  In the absence of more
conclusive evidence that the applicant did in fact derive citizenship via
one of his parents, there is no basis to correct that item on his
separation document.

3.  The medical documents provided by the applicant do not provide
sufficient compelling evidence that the applicant was in fact wounded as a
result of hostile action while in Vietnam.  Two of the primary requirements
for award of the Purple Heart include that any wound or injury sustained as
a result of hostile action must have required treatment by a medical
officer and have been made a matter of official record.  The applicant
himself admitted that he “never complained” about his injuries.  In the
absence of evidence confirming that the applicant was wounded as a result
of hostile action, there is no basis for an award of the Purple Heart.

4.  The address information contained on the applicant’s separation
document was accurate at the time the document was prepared and served the
purpose for which it was designed.  The entry was never intended to be
updated or changed each time a former Soldier relocated in the years
following his separation from active duty.  No error or injustice is
created by the address currently reflected on the applicant’s separation
document and as such, no action is required to change that information.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 February 1970; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
26 February 1973.  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.

6.  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

__FE ___  __PHM__  _MJNT __  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 four bronze service stars on his Vietnam Service Medal
and entitlement to two awards of the Republic of Vietnam Gallantry Cross
Unit Citation with Palm, and one Republic of Vietnam Civil Actions Honor
Medal First Class Unit Citation.




            _____Fred Eichorn________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003099542                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040427                                |
|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.                      |                                        |