RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           3 February 2005
      DOCKET NUMBER:  AR20040001117


      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. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Larry J. Olson                |     |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 he should be entitled to at least
one and possibly two PHs based on injuries he received while serving in the
Republic of Vietnam (RVN).

3.  The applicant provides a self-authored statement, separation document
(DD Form 214) and two physical profile records in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 4 September 1970.  The application submitted in this case
was received on 6 May 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 enlisted in the Regular Army and
entered active duty on 6 September 1968.  He was trained in and awarded
military occupational specialty (MOS) 17B (Radar Crewman) and the highest
rank he attained while serving on active duty was specialist four (SP4).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows that
he served in the RVN from 20 January 1969 through 19 January 1970.  It
further shows that during this RVN tour, he was assigned to C Battery, 6th
Battalion 32nd Artillery from 20 January through 8 June 1969 and to
Headquarters and Headquarters Battery (HHB), 8th Battalion, 26th Artillery
from 9 June 1969 through 19 January 1970.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 is blank.  Item 41
(Awards and Decorations) lists the following awards he earned during his
active duty tenure:  National Defense Service Medal (NDSM), Vietnam Service
Medal (VSM) with 2 bronze service stars, RVN Campaign Medal, Expert
Qualification Badge with Rifle and Hand Grenade Bars.
6.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no
orders or other documents indicating that the applicant was ever
wounded/injured in action or that he was ever recommended for or awarded
the PH.

7.  On 4 September 1970, the applicant was honorably separated after
completing 1 year, 11 months and 29 days of active military service.  The
DD Form 214 he was issued shows, in Item 24 (Decorations, Medals, Badges,
Commendations, Citations and Campaign Ribbons Awarded or Authorized), that
he earned the following awards during his active duty tenure:  NDSM, VSM
with 2 bronze service stars, RVN Campaign Medal and Expert Qualification
Badge with Rifle and Hand Grenade Bars.  The PH is not included in the list
of awards and the applicant authenticated this document with his signature
in
Item 32 (Signature of Person Being Transferred or Discharged).

8.  The applicant provides two medical condition-physical profile records
in support of his application.  The first of these records is dated 13 May
1969 and indicates the applicant was issued a 3 profile in the lower
extremities due to a spondylolysis (sic) L4 and sacralization (sic) L5.
The second is dated 18 October 1969 and assigned the applicant a 3 profile
in hearing based on a bilateral hearing loss.  Neither of these medical
documents indicates the conditions the applicant suffered from were the
direct result of or caused by enemy action.

9.  In connection with the processing of this case, a member of the Board
staff reviewed the Department of the Army (DA) Vietnam Casualty List.  The
applicant’s name was not listed as an RVN casualty on this casualty roster.

10.  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 awarding the PH.  It states, in pertinent
part, that the PH is awarded to any member who has been wounded or killed
in action. A wound is defined as an injury to any part of the body from an
outside force or agent sustained under conditions defined by this
regulation.  In order to support awarding a member the PH, it is necessary
to establish that the wound, for which the award is being made, required
treatment by a medical officer.  Records of medical treatment for the wound
must support this treatment or injury received in action, and must have
been made a matter of official record.

11.  Paragraph 2-13 of the awards regulation contains guidance on award of
the VSM.  It states, in pertinent part, that a bronze service star is
authorized with this award for each RVN campaign a member is credited with
participating in while serving in the RVN.

12.  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 units (26th and 36th Artillery)
earned the RVN Gallantry Cross with Palm Unit Citation.  It further shows
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
medical documents he submitted were carefully considered.  However, by
regulation, in order to award the PH it is necessary to establish that a
soldier was wounded as a result of enemy action, that the wound required
treatment by a medical officer, and that the record of medical treatment
was made a matter of official record.

2.  The medical evidence submitted by the applicant confirms he received
physical profiles for back and ear conditions.  However, these documents
fail to show these conditions were the result of combat related wounds or
injuries.  Further, the evidence of record provides no confirmation that
the applicant was ever wounded or injured in action, or that he was ever
recommended for or awarded the PH.

3.  Item 40 of the applicant’s DA Form 20 is blank, indicating that he was
never wounded or injured in action.  His DD Form 214 does not include the
PH in the list of authorized awards and he authenticated this document with
his signature, thereby verifying that the information it contained was
correct at the time the separation document was prepared and issued.
Further, his name is not on the DA Vietnam Casualty Roster, the official
list of RVN casualties.  As a result, the regulatory burden of proof
necessary to support award of the PH has not been satisfied in this case.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 4 September 1970.  Therefore, the time

for him to file a request for correction of any error or injustice expired
on
3 September 1973.  However, he 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.
5.  The evidence shows that based on his RVN service and campaign
participation, the applicant is entitled to RVN Gallantry Cross with Palm
Unit Citation and 4 bronze service stars with his VSM.  Adding these awards
to his record does not require Board action.  As a result, the Case
Management Support Division (CMSD), will take the admistrative action
outlined in paragraph 3 of the BOARD DETERMINATION/RECOMMENDATION section
below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MHM_  ___LJO _  ___LMB _  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 based on his service and campaign
participation in the RVN, the applicant is entitled to the Republic of
Vietnam Gallantry Cross with Palm Unit Citation and 4 bronze service stars
with his Vietnam Service Medal.  As a result, it requests that the CMSD-St.
Louis administratively correct the records of the individual concerned by
issuing a corrected separation document that includes these awards.




            ____Melvin H. Meyer  ____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040001117                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/02/03                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1970/09/04                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY w Admin Note                       |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  61   |107.0015                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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