RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           29 January 2004
      DOCKET NUMBER:   AR2003090128


      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             |
|     |Mr. Richard P. Nelson             |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Raymond V. O’Connor, Jr.      |     |Chairperson          |
|     |Mr. Walter T. Morrison            |     |Member               |
|     |Ms. Karen Y. Fletcher             |     |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 correction of his DD Form 214 (Armed Forces of
the United States Report of Transfer or Discharge) to reflect award of the
Purple Heart and the Combat Infantryman Badge “with Cluster.”

2.  The applicant states that he was in numerous firefights at several
firebases and on numerous mine sweeps.  He states the Purple Heart is
verifiable, in that he has shrapnel in his right kneecap.  Lastly, the
applicant states that he has just started to trust the Veterans
Administration (VA) after the way he was treated when he returned from
Vietnam and that he initially wanted nothing to do with the VA or the
military after his honorable discharge.  He now finds that the VA is trying
to help Vietnam Veterans and hopes that this “will be resolved now that
treatment has improved.”

3.  The applicant provides a copy of an August 2002 psychiatric examination
on himself, conducted by a resident physician at the University of
California, Los Angeles.  He also provides 24 untitled pages of what
appears to be an extract of a combat after action report pertaining to the
1st Brigade, 5th Infantry Division (Mechanized) during the January through
April 1971 timeframe.  The pages appear to have been taken from a WEB site
of the Society of The Fifth Division.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of error that occurred on 20
July 1971.  The application submitted in this case is dated 22 April 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.  The applicant's military records show that he was inducted on 4
November 1969.  He underwent basic combat and advanced individual training
in Military Occupational Specialty (MOS) 63A10 (Mechanical Maintenance
Apprentice).  The applicant served at Fort Carson, Colorado prior to
deploying to Vietnam, where he served from 5 July 1970 to 4 July 1971, with
A Company, 7th Engineer Battalion, 5th Infantry Division (Mechanized).  He
returned to the United States and was honorably separated from the Army on
20 July 1971 in pay grade E-2.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and
Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214,
signed in his own hand, shows that he is entitled to the following
decorations: the Vietnam Service Medal; the National Defense Service Medal;
the Vietnam Campaign Medal; and, the Sharpshooter Marksmanship Badge with
Rifle Bar.  No other awards or decorations are listed.

5.  The applicant’s name is not listed on the Vietnam Casualty Roster.

6.  There are no entries in item 40 (Wounds) of the applicant’s DA Form 20
(Enlisted Qualification Record) that show he was wounded as a result of
hostile action.

7.  The applicant’s medical records appear to be quite complete and intact.
 There is no indication in the records that the applicant was ever wounded,
or treated for wounds, as a result of hostile action, during his service in
Vietnam.

8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part,
that the Purple Heart is awarded to any member of an Armed Force who, while
serving under competent authority in any capacity with one of the U.S.
Armed Services after 5 April 1917, has been wounded or killed 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, and the medical treatment must have been made a matter of
official record.

9.  U.S. 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 will be awarded the Purple Heart by the organization to
which the individual is assigned. Personnel requiring hospitalization in
excess of 24 hours or evacuation from Vietnam will be awarded the Purple
Heart directly by the hospital commander rendering treatment.

10.  Army Regulation 600-8-22 provides, in pertinent part, that the Combat
Infantryman Badge is awarded to infantry officers and to enlisted and
warrant officer persons 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.  The Awards Branch of the Total Army
Personnel Command has advised, in similar cases, that during the Vietnam
era the Combat Infantryman Badge was awarded only to enlisted individuals
who held and served in MOS 11B, 11C, 11F, 11G, or 11H.

11.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign
Participation Credit Register) lists the unit awards received by units that
served in the Vietnam War.  This document shows the unit to which the
applicant was assigned, was cited for award of the Republic of Vietnam
Gallantry Cross Unit Citation with Palm for actions during the period 3
February to 30 April 1971, by Department of the Army General Orders Number
142, dated 1972.

12.  Army Regulation 600-8-22, in pertinent part, authorizes award of a
bronze service star, based on qualifying service, for each campaign listed
in Appendix B of this regulation and states that authorized bronze service
stars will be worn on the appropriate service medal.  The appendix shows
that the applicant is entitled to wear one bronze service star for each the
following Vietnam campaigns: Vietnam Counteroffensive Phase VII and
Consolidation I.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence that the applicant was awarded the Purple Heart.
There is no evidence in the applicant’s service personnel records that
shows that he was wounded, or treated for wounds or injuries, as a result
of hostile action.  Therefore he is not entitled to award of the Purple
Heart.

2.  The applicant’s service personnel records show that he served in MOS
63A10 throughout his tour of duty in Vietnam.  There is no evidence that he
was ever assigned as an infantryman, to an infantry unit of brigade,
regimental, or smaller size, while that unit was engaged in active ground
combat.  Therefore he is not entitled to award of the Combat Infantryman
Badge.

3.  General Orders show that the applicant is entitled to the Republic of
Vietnam Gallantry Cross Unit Citation with Palm.  Therefore, he is entitled
to correction of his records to show this unit award.

4.  Evidence of record shows that the applicant received the Vietnam
Service Medal and participated in two campaigns.  As a result, is entitled
to award of two bronze service stars and correction of his records to show
these appurtenances.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 July 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 19 July 1974.  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 file in this case.

6.  The evidence shows that the applicant’s record contains administrative
errors that do not require action by the Board.  The necessary corrections
will be accomplished administratively by the Case Management Support
Division (CMSD), St. Louis, Missouri, as outlined in paragraph 2 of the
Determination/Recommendation section below.
BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

___wtm__  ___kyf___  ____rvo_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented and the merits of this
case are insufficient to warrant the relief requested, and therefore, it
would not 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.

2.  The Board determined that administrative errors in the records of the
individual should be corrected.  Therefore, the Board requests that the
CMSD, St. Louis, Missouri administratively correct the records of the
individual concerned to show award of:

      a. the Republic of Vietnam Gallantry Cross Unit Citation with Palm;
and,


      b. two bronze service stars, to be affixed to the Vietnam Service
Medal.




            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003090128                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20030129                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |