RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         22 April 2004
      DOCKET NUMBER: AR2003097859


      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. James C. Hise                 |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Frank C. Jones                |     |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 military records to show award
of the Purple Heart.

2.  The applicant states that he sustained wounds as a result of an
exploding enemy 120 MM mortar round at Fire Support Base Ripcord, Republic
of Vietnam, on 18 July 1970.  The applicant goes on to say that:

      a. “Though severe and painful, the combat wounds were not sufficiently
incapacitating at the time to preclude me from carrying on my duties as the
brigade commander of a firebase under attack. I chose to not seek medical
help as my duties were critical and several other soldiers needed medical
help.”


      b. “The incoming mortar, recoilless rifle, rocket propelled grenades
and .51 caliber machine gun fire continued for the next 5 days.  With four
infantry battalions in contact and under my operational control, I never
took the time to seek medical assistance or report my wounds.”


      c. “Back in the States and on into retirement, I did seek and receive
medical assistance for my back and shoulder pain and hearing loss resulting
from wounds on 18 July 1970, but did not request award of the Purple
Heart.”

3.  In addition, the applicant states that “the absence of the Purple Heart
became more important emotionally and financially” and “as the laws and
regulations have begun to put a premium on disabilities resulting from
combat wounds for which a Purple Heart was awarded, I am for the first time
requesting a correction of my military record.”

4.  The applicant provides a copy of his DD Form 214 (Report of Separation
from Active Duty), a copy of a Rating Decision by the Department of
Veterans Affairs, two individual eyewitness statements, and one eyewitness
statement signed by four former members of the applicant’s unit.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error that occurred on 31
August 1979.  The application submitted in this case is dated 24 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.  The applicant's military records show that he enlisted in the Army on
4 February 1946 and was honorably separated on 3 February 1949 in the grade
of sergeant first class.  The applicant reentered active duty on 3
September 1951 as a second lieutenant and completed a stellar military
career, retiring in the grade of major general on 31 August 1979.

4.  Item 26 (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 Silver Star with first oak leaf cluster; the Legion of
Merit with first oak leaf cluster; the Distinguished Flying Cross with
first oak leaf cluster; the Soldier’s Medal; the Air Medal (35th Award);
the Meritorious Service Medal with first oak leaf cluster; the Joint
Service Commendation Medal with first oak leaf cluster; the Army
Commendation Medal with first oak leaf cluster; the Good Conduct Medal; the
Combat Infantryman Badge; the Expert Infantryman Badge; the Army Aviator
Badge; the Senior Army Aviator Badge; the Master Army Aviator Badge; the
Parachutist Badge; the American Campaign Medal; the World War II Victory
Medal; the Army of Occupation Medal (Germany); the Vietnam Service Medal;
the National Defense Service Medal with one bronze service star; the
Vietnam Campaign Medal; the Republic of Vietnam Gallantry Cross Unit
Citation with Palm; the Republic of Vietnam Gallantry Cross with Palm (2d
Award); the Republic of Vietnam Gallantry Cross with Silver Star (2d
Award); the Republic of Vietnam Gallantry Army Distinguished Service Order
(2d Class); the Republic of Vietnam Staff Service Medal (1st Class); and,
four Overseas Service Bars.  There is no entry, or other indication, that
the applicant was awarded the Purple Heart.

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

6.  There are no orders in the available records that show that the
applicant was awarded the Purple Heart and the applicant has not provided a
copy of orders awarding the Purple Heart.

7.  There are no medical documents in the available records that show that
the applicant was wounded, or treated for wounds, as a result of hostile
action.

8.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple
Heart is awarded for a wound 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, 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 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.

10.  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 of
the following Vietnam campaigns: Vietnam Counteroffensive, Phase II;
Vietnam Counteroffensive, Phase III; Sanctuary Counteroffensive; and,
Vietnam Counteroffensive, Phase VII.

11.  Department of the Army Permanent Orders Number 164-2, dated 27 August
1979, announced award of the Distinguished Service Medal to the applicant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s DD Form 214 does not show award of the Purple Heart and
there are no orders in the applicant’s records that award him the Purple
Heart.  The applicant’s name does not appear on the Vietnam Casualty Roster
and there is no evidence that he was wounded, or treated for wounds, as a
result of hostile action during his service in Vietnam.

2.  The Department of Veteran’s Affairs Rating Decision provided by the
applicant shows that the applicant was determined 10 percent disabled for
chronic lumbar strain from 1 September 1979 and 20 percent from 29 June
2001. The rating also shows the applicant was determined 10 percent
disabled for bursitis, right shoulder from 29 June 2001.  There is no
indication that the disabilities resulted from wounds incurred in 1970.

3.  The information provided in the third party statements provided by the
applicant were carefully considered.  However, given the lack of any
corroborating evidence of record or other independent sources, these
statements alone are not sufficient to meet the regulatory burden of proof
necessary to support the award of the Purple Heart.

4.  The applicant’s military personnel records clearly show that he
distinguished himself by bravery and fidelity time and time again.  His
valor and accomplishments have been recognized by a myriad of awards and
decorations throughout a long and distinguished career.  However, the
evidence presented does not show that he was wounded, or treated for
wounds, as a result of enemy action.  Therefore, the applicant is not
entitled to award of the Purple Heart or to correction of records to show
this decoration.

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

6.  Permanent Orders show that the applicant was awarded the Distinguished
Service Medal.  Therefore, he is entitled to correction of his records to
show this decoration.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 August 1979; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 30 August 1982.  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.

8.  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 3 of the
Determination/Recommendation section below.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

___jch___  ____fcj __  ___lds___  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, Missouri administratively correct the records of the
individual concerned to show award of:

      a. the Distinguished Service Medal; and,

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




            _________James C. Hise_____________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003097859                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040422                                |
|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.                      |                                        |