RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         24 FEBRUARY 2005
      DOCKET NUMBER:  AR20040006292


      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:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Mr. Ronald Weaver                 |     |Member               |
|     |Mr. Jonathon Rost                 |     |Member               |

      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 is requesting award of the Purple Heart for
injuries he received in Vietnam.  He states his "record of medals" should
include the Purple Heart.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 23 December 1971.  The application submitted in this case
is dated 11 August 2004.

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 limitations 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 15 May 1970.  Although initially trained as a
field artilleryman, he was assigned duties as a supply clerk with the 23rd
Infantry Division upon his arrival in Vietnam in October 1970.

4.  The applicant remained in Vietnam until October 1971 when he returned
to the United States and was assigned to Fort Sill, Oklahoma.  He was
released from active duty on 23 December 1971 under an early release
program for first term enlisted Soldiers.

5.  Other than the applicant's separation physical examination, completed
in December 1971, there were no other service medical records available to
the Board, or provided by the applicant.  His separation physical
examination makes no mention of any wounds sustained as a result of hostile
action.  His name is not among a list of individuals reported as combat
casualties during the Vietnam War and item 40 (wounds) on his Department of
the Army Form 20 (Enlisted Qualification Record) is blank.
6.  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.

7.  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 two designated campaigns (Vietnam
Counteroffensive Phases VII and Consolidation I) during the applicant’s
period of assignment.  Two 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 during his tenure with the
organization.  The unit award was also omitted from his separation document

DISCUSSION AND CONCLUSIONS:

1.  Unfortunately, there is no medical evidence which confirms that the
applicant was wounded as a result of hostile action and as such, there is
no basis for an award of the Purple Heart.

2.  In order to justify correction of a military record the applicant must,
or it must otherwise satisfactorily appear, that the record is in error or
unjust.  The applicant has failed to submit evidence that would satisfy
this requirement.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 December 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
22 December 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 timely file in this case.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___YM __  ___RW__  ___JR  __  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 entitlement to two bronze service stars on his Vietnam
Service Medal, and a Republic of Vietnam Gallantry Cross Unit Citation with
Palm.



                                  ___ Yolanda Maldonado_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040006292                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050224                                |
|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.                      |                                        |


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