RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            08 JUNE 2004
      DOCKET NUMBER:   AR2004102236


      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. Jennifer Prater               |     |Chairperson          |
|     |Ms. Karen Fletcher                |     |Member               |
|     |Mr. John Denning                  |     |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.

2.  The applicant states he was wounded in action but did not receive a
Purple Heart.

3.  The applicant provides a copy of his Army Commendation Medal for his
heroic actions on 23 May 1969, a copy of his Air Medal for meritorious
achievement, and extracts from his service medical records which reflect
treatment for a laceration to his head and headaches.  He also submits a
copy of his January 1968 physical examination.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 12 January 1971.  The application submitted in this case
is dated
14 November 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 the applicant entered active
duty on
7 January 1968.  His enlistment physical examination indicates he was in
good health.

4.  The applicant was trained as an infantryman and in August 1968 was
assigned as a rifleman with the 5th Battalion, 7th Cavalry Regiment in
Vietnam.

5.  In January 1969 the applicant was awarded the Air Medal for meritorious
achievement during the period August 1968 to January 1969.  On 4 April 1969
the applicant was awarded the Army Commendation Medal with "V" device for
his heroic actions on 9 December 1968.  On 11 July 1969 the applicant was
awarded his second Army Commendation Medal with "V" device for his heroic
actions on 23 May 1969.  All of the awards were confirmed in orders issued
by the 1st Cavalry Division, however, his separation document reflects
award of only the Army Commendation Medal; the "V" devices were omitted
from the entry.

6.  According to the medical documents provided by the applicant, on 14
June 1969, he was treated for a "severe scalp laceration & concussion"
which occurred "3 days prior."  The applicant sought medical treatment on
18 and
19 June 1969 when he complained of continuing headaches associated with his
scalp laceration.  By 23 June 1969 the medical treatment document indicates
that the laceration "healing is excellent" and that the applicant had no
complaints and was returned to duty.  None of the entries indicate the
applicant's scalp laceration resulted from enemy action.

7.  The applicant returned to the United States in August 1969 and was
briefly assigned to Fort Knox, Kentucky prior to being reassigned to an
infantry element in Germany.  While at Fort Knox, the applicant qualified
as an expert with the M-14 rifle and was awarded the associated badge and
component bar.  Orders issued by the 194th Armored Brigade confirmed the
award.  However, the information was omitted from the applicant's
separation document.

8.  On 12 January 1971 the applicant was released from active duty at the
conclusion of his enlistment contract.  His separation document does not
reflect award of the Purple Heart and item 40 (wounds) on his Department of
the Army Form 20 (Enlisted Qualification Record) is blank.  The applicant
last authenticated the information on his enlisted qualification record on
26 April 1970.

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.  The applicant's name is not among a list of individuals reported as
combat casualties during the Vietnam War.

11.  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 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 during his tenure with the organization.
The unit awards were also omitted from his separation document.


DISCUSSION AND CONCLUSIONS:

1.  The medical evidence available to the Board does not confirm that the
applicant’s scalp laceration was the result of hostile action.  There
appears to be no connection between the applicant’s May 1969 award for
heroism and his June 1969 treatment of a scalp laceration.

2.  In the absence of more compelling medical evidence that the applicant
was in fact wounded as a result of hostile action while in Vietnam, there
is no basis for an award of the Purple Heart.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 January 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
11 January 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.

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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JP____  __KF ___  ___JD___  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:

      a.  award of two “V” devices on his Army Commendation Medal;


      b.  award of the Air Medal;


      c.  qualification as an expert with the M-14 rifle and award of the
associated badge and component bar; and


      d.  entitlement to four bronze service stars on the Vietnam Service
Medal, 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.





            ____ Jennifer Prater______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR202-38-2635                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040608                                |
|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.                      |                                        |