RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 JANUARY 2005
      DOCKET NUMBER:  AR20040000700


      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. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen Newman               |     |Chairperson          |
|     |Mr. James Anderholm               |     |Member               |
|     |Ms. LaVerne Douglas               |     |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 he sustained an ear injury from a claymore
mine explosion in Vietnam, leaving him with hearing damage to both ears.
His ear drums were ruptured and his ears were bleeding.  Around the middle
of October 1971 the guide came down the hill and tripped the wire to the
claymore mine.  The impact of the noise from the explosion caused his
hearing problem.

3.  The applicant provides a list of names of Soldiers who could provide
verification of the incident.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 1 February 1974.  The application submitted in this case
is dated    21 April 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 enlisted in the Army for three years on 4 February 1971,
and in October 1971 was assigned as an engineer equipment repairman to
Company B, 169th Engineer Battalion in Vietnam.

4.  The applicant was promoted to private first class on 6 October 1971.
On     30 December 1971 he received nonjudicial punishment under Article
15, UCMJ (Uniform Code of Military Justice) for discharging a rifle in a
maintenance section bunker.  On 10 January 1972 he was reassigned to
Company A of that battalion. His conduct and efficiency with Company B were
both excellent, as shown on his DA Form 20 (Enlisted Qualification Record).
 He was promoted to pay grade E-4 on 15 February 1972.

5.  On 24 March 1972 the applicant was awarded the Army Commendation Medal
for his meritorious service in Vietnam.  In April 1972 he returned to the
United States and was assigned to Fort Carson, Colorado.  The applicant
participated in three campaigns during his tour of duty in Vietnam and the
    169th Engineer Battalion was awarded the Republic of Vietnam Gallantry
Cross Unit Citation with Palm for its actions during his assignment with
that organization.

6.  On 31 May 1973 the applicant was commended for his dedication, devotion
to duty, professionalism, and conduct while assigned to the 52nd Engineer
Battalion at Fort Carson.  An efficiency report for the one year period
ending in August 1973 shows that his rating officials considered him to be
an excellent Soldier who should be promoted ahead of his contemporaries.

7.  The applicant was released from active duty on 1 February 1974.  His
     DD Form 214 (Report of Separation from Active Duty) does not show
award of the Purple Heart.  His DA Form 20 does not show award of the
Purple Heart.  Item 40 (Wounds) on that form contains no entry.

8.  The Vietnam Casualty Roster maintained by this agency does not show
that the applicant was wounded in action.

9.  Army Regulation 600-8-22 provides 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.  Enemy-related injuries while
clearly justify award of the Purple Heart include injuries caused by enemy
placed mine or trap, and concussion injuries caused as a result of enemy
generated explosions.  Injuries or wounds which clearly do not qualify for
award of the Purple Heart include accidents, to include explosive,
aircraft, vehicular, and other accidental wounding not related to or caused
by enemy action.

10.  The Army Good Conduct Medal is awarded to individuals who distinguish
themselves by their conduct, efficiency and fidelity during a qualifying
period of active duty enlisted service.  This period is 3 years except in
those cases when the period for the first award ends with the termination
of a period of Federal military service.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence and the applicant has not provided any to show
that he was wounded as a result of hostile action.  Furthermore, by his own
admission, the applicant states that his injuries were caused by an
accidental tripping of a claymore mine resulting in the explosion that
damaged his ears – an incident not caused by or related to enemy action.

2.  Since there is insufficient evidence to show that the applicant was
wounded as a result of hostile action, he is not entitled to award of the
Purple Heart.

3.  Notwithstanding the one incident of his misconduct as shown by the
Article 15 record, the applicant served his country faithfully and
honorably, as indicated by his advancement to pay grade E-4, award of the
Army Commendation Medal, letter of commendation, and efficiency report.  He
is entitled to award of the Army Good Conduct Medal.

4.  The applicant participated in three campaigns in Vietnam.  He is
entitled to award of the Vietnam Service Medal with three bronze service
stars (one for each campaign).

5.  The applicant is entitled to award of the Republic of Vietnam Gallantry
Cross Unit Citation with Palm.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___KN __  ___JA___  ___LD __  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by award of the Army Good
Conduct Medal, the Vietnam Service Medal with three bronze service stars,
and the Republic of Vietnam Gallantry Cross Unit Citation with Palm.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
award of the Purple Heart.




                            _____Kathleen Newman______
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040000700                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050125                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |PARTIAL GRANT                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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