RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 SEPTEMBER 2004
      DOCKET NUMBER:  AR2004101790


      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. Mark Manning                  |     |Chairperson          |
|     |Ms. Karen Heinz                   |     |Member               |
|     |Mr. Robert Duecaster              |     |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 that the “incident in question was a result of
combat with the enemy during a time of war.”

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 15 September 1969.  The application submitted in this
case is dated
9 December 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 8 February 1968.

4.  In September 1968 the applicant was assigned to Vietnam and performed
duties as a cannoneer with the 3rd Battalion, 319th  Artillery, 173rd
Airborne Brigade.  He remained with that unit until returning to the United
States in September 1969.

5.  On 15 September 1969 the applicant was released from active duty.
Neither his Department of the Army Form 20 (Enlisted Qualification Record),
nor his Department of Defense Form 214 (Armed Forces of the United States
Report of Transfer or Discharge) reflects entitlement to the Purple Heart.
Item 40 (wounds) on his Department of the Army Form 20 is blank.  The
applicant authenticated the information on his Department of the Army Form
20 on 5 September 1969 and his separation document on the day he was
released from active duty.

6.  There were no service medical records available to the Board beyond the
applicant’s separation physical examination.  That examination, conducted
on
15 September 1969 makes no mention of any combat wounds.  The applicant’s
name is also not among a list of individuals reported as combat casualties
during the Vietnam War.

7.  A March 2002 Department of Veterans Affairs rating decision, contained
in records available to the Board, notes that the applicant’s service
medical records contained a “report that the veteran was treated at
Battalion Aid Station for laceration of his face due to an exploding trip
flare.”

8.  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.

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.  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 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, 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.  There is no evidence, and the applicant has not provided any, which
confirms that he was wounded as a result of hostile action while in
Vietnam.  In the absence of such evidence, there is no basis for an award
of the Purple Heart.

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

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 September 1969; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
15 September 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.

4.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MM__  ___KH __  __RD ___  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 the applicant is entitled to four bronze service stars on
his Vietnam Service Medal, the Republic of Vietnam Gallantry Cross Unit
Citation with Palm and the Republic of Vietnam Civil Actions Honor Medal
First Class Unit Citation.




                                  ______Mark Manning________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004101790                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040914                                |
|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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