RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 January 2005
      DOCKET NUMBER:  AR20040000373


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Ms. Delia R. Trimble              |     |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, in effect, award of the Purple Heart (PH).

2.  The applicant states, in effect, that due to an administrative
oversight, he was never awarded a PH he was entitled to based on being
wounded in action on
5 August 1969, while serving in the Republic of Vietnam (RVN).  He claims
that during an engagement with enemy forces, several people received
shrapnel wounds as a result of artillery fire that was called in and one
Soldier was killed in action.  He states his unit commander forwarded
reports of the action back to the unit clerk, but these reports were either
lost or misplaced and were never processed.  The unit clerk returned to the
United States on the 6th or 7th of August 1969.

3.  The applicant provides the following documents in support of his
application:  Self-Authored Statement, 2 Third-Party Witness Statements,
Photograph, Separation Document (DD Form 214), and Compensation and Pension
Exam Report (VA Form 2507.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 3 June 1970.  The application submitted in this case is
dated
19 March 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 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 record shows he was inducted into the Army and entered
active duty on 4 June 1968.  He was trained in and awarded military
occupational specialty (MOS) 11B (Infantryman) and the highest rank he
attained while serving on active duty was staff sergeant/E-6 (SSG/E-6).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he
served in the RVN from 23 November 1968 through 22 November 1969.  During
his RVN tour, he was assigned to Company B, 4th Battalion, 9th Infantry
Regiment, 25th Infantry Division.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 is blank and contains no
entry indicating the applicant was ever wounded in action.  Item 41 (Awards
and Decorations) shows he earned the following awards:  National Defense
Service Medal (NDSM), Vietnam Service Medal (VSM) with 3 bronze service
stars, RVN Campaign Medal with 60 Device, Bronze Star Medal (BSM) 1st Oak
Leaf Cluster, Army Commendation Medal (ARCOM) with Valor (“V”) Device, and
Expert Qualification Badge with Rifle Bar and Marksman Qualification Badge
with Automatic Rifle Bar.  Item 48 (Date of Audit) shows he last audited
this record on 5 January 1970.

6.  The applicant’s Military Personnel Records Jacket (MPRJ) contains a
copy of Headquarters, 25th Infantry Division General Orders (GO) Number (#)
9319, which awarded the applicant the BSM with “V” Device, for heroism in
connection with military operations against a hostile force in the RVN on
19 June 1969.  It also contains a copy of Headquarters, 25th Infantry
Division GO # 8767, which awarded him the ARCOM with “V” Device, for
heroism in connection with military operations against a hostile force in
the RVN on 7 June 1969.

7.  The applicant’s MPRJ also includes a copy of Headquarters, 25th
Infantry Division GO # 9766, which awarded him the Air Medal, for
meritorious achievement while participating in aerial flight in the RVN
during the period
4 June through 10 July 1969.  It also includes a copy of GO # 11017, which
awarded him the BSM 1st Oak Leaf Cluster, for meritorious service in the
RVN during the period November 1968 through November 1969.

8.  On 3 June 1970, the applicant was honorably separated from active duty
after completing 2 years of active military service.  The DD Form 214 he
was issued upon his separation confirms he earned the following awards
during his tenure on active duty:  NDSM, VSM with 3 bronze service stars,
RVN Campaign Medal with 60 Device, ARCOM with “V” Device, and BSM with 1st
Oak Leaf Cluster.
9.  An Authorization for Issuance of Awards (DA Form 1577), dated 29 May
1999, published by the National Personnel Records Center (NPRC) showed the
applicant was entitled to the following awards he earned while serving on
active duty:  BSM 1st Oak Leaf Cluster with “V” Device, Air Medal, ARCOM
with “V” Device, NDSM, VSM with 3 bronze service stars, Combat Infantryman
Badge (CIB), RVN Campaign Medal with 60 Device, RVN Gallantry Cross with
Palm Unit Citation, Expert Qualification Badge with Rifle Bar, and Marksman
Qualification Badge with Automatic Rifle Bar.

10.  The applicant provides two third-party statements from his former unit
commander and executive officer in the RVN.  Both statements indicate the
applicant sustained shrapnel wounds during an engagement with enemy forces
in the RVN on 5 August 1969.  The unit commander states when the battle was
over the company had wounded men and suffered one loss.  Both the unit
commander and executive officer attribute the applicant not being awarded
the PH to an administrative error on the part of the unit clerk, who left
the RVN a day or two after the action.

11.  In connection with the processing of this case, a member of the Board
staff reviewed the unit historical records maintained at the National
Archives.  This search failed to produce any morning reports or unit
records that confirm the applicant was wounded in action.  A review of the
Department of the Army Vietnam Casualty Roster found the applicant’s name
was not included on this list of RVN casualties.

12.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and
criteria concerning individual military awards.  Paragraph 2-8 contains the
regulatory guidance pertaining to award of the PH.  It states, in pertinent
part, that in order to award a PH there must be evidence that the wound for
which the award is being made was received as a result of enemy action, the
wound must have required medical treatment and the medical treatment must
have been made a matter of official record.

13.  Paragraph 8-6 of the awards regulation contains the criteria for
awarding the CIB. It states, in pertinent part, that there are basically
three requirements for award of the CIB.  The soldier must be an
infantryman satisfactorily performing infantry duties, must be assigned to
an infantry unit during such time as the unit is engaged in active ground
combat, and must actively participate in such ground combat.
14.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit
Register) establishes the eligibility of individual members for campaign
participation credit, assault landing credit, and unit citation badges
awarded during the Vietnam Conflict.  It confirms that during his tenure of
assignment in the RVN, the applicant’s unit (4th Battalion, 9th Infantry
Regiment) the RVN Gallantry Cross with Palm Unit Citation and RVN Civil
Actions Honor Medal First Class Unit Citation.  It also confirms that based
on the dates of his service
in the RVN, the applicant was credited with participating in the Vietnam
Counteroffensive Phase VI, TET 69 Counteroffensive, Vietnam Summer-Fall
1969 and Vietnam Winter-Spring 1970 campaigns.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH and the supporting third-
party statements he submitted were carefully considered.  However, by
regulation, in order to support award of the PH, there must be evidence to
show a member was wounded in action, was treated for the wound and a record
of this treatment must have been made a matter of official record.

2.  The evidence of record provides no indication that the applicant was
ever wounded in action or awarded the PH.  Item 40 of his DA Form 20 is
blank, indicating he was never wounded action and the PH was not included
in the list of awards listed in Item 41.  The applicant last audited the DA
Form 20 on
5 January 1970, thereby verifying that the information it contained was
correct at that time.

3.  Further, the PH is not included in the list of awards contained on the
applicant’s DD Form 214.  The applicant authenticated this document with
his signature on the date of his separation, thereby verifying that the
information it contained, to include the list of awards, was correct at the
time it was prepared and issued.  Finally, the applicant’s name is not
included on the DA Vietnam Casualty Roster, the official list of RVN
casualties.

4.  The veracity of the applicant’s claim of entitlement to the PH and of
the information contained in the supporting third-party statements in not
in question.  However, absent any evidence of record to corroborate these
statements, the regulatory burden of proof necessary to support award of
the PH has not been satisfied in this case.  Therefore, the applicant’s
request for the PH must be denied in the interest of all those who served
in the RVN and who faced similar circumstances.
5.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH on 3 June 1970, the date of his
separation. Therefore, the time for him to file a request for correction of
any error or injustice expired on 2 June 1973.  However, he failed to 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.

6.  The evidence of record does show that awards the applicant earned or is
entitled to were erroneously omitted from his separation document.  These
include the CIB, BSM 1st Oak Leaf Cluster with “V” Device, Air Medal,
RVN Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal
First Class Unit Citation, Expert Qualification Badge with Rifle Bar,
Marksman Qualification Badge with Automatic Rifle Bar and 4 bronze service
stars with his VSM.

7.  The omission of earned awards and decorations for the applicant’s
separation document is an administrative matter that does not require Board
action.  Thus, administrative correction of his record 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

___LCB_  ___DRT__  __BPI___  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice related to award of the
Purple Heart.  Thus, 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 by amending his 3 June 1970 DD Form 214 by deleting current list
of award in Item 24 (Decorations, Medals, Badges, Commendations, Citations
and Campaign Ribbons Awarded or Authorized) and replacing it with the
following list of awards: Bronze Star Medal 1st Oak Leaf Cluster with “V”
Device, Air Medal,
Army Commendation Medal with “V” Device, Combat Infantryman Badge, National
Defense Service Medal, Vietnam Service Medal with 4 bronze service stars,
Republic of Vietnam Campaign Medal with 60 Device, Republic of Vietnam
Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions
Honor Medal First Class Unit Citation, Expert Qualification Badge with
Rifle Bar, and Marksman Qualification Badge with Automatic Rifle Bar.




            ____Bernard P. Ingold_____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040000373                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-01-19                              |
|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.                      |                                        |


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