RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 FEBRUARY 2005
      DOCKET NUMBER:  AR20040001817


      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. Jennifer Prater               |     |Chairperson          |
|     |Mr. Thomas Pagan                  |     |Member               |
|     |Mr. Kenneth Lapin                 |     |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 had a shrapnel wound in Vietnam.  He
participated in the TET offensive in February 1968 and took incoming mortar
fire during a three-day firefight.  Although his arms and upper body were
sore, he did not realize shrapnel was in his arm.  He discovered the
shrapnel in June 2003 and sought medical attention.

3.  The applicant provides a copy of a Department of Veterans Affairs (VA)
rating decision, a copy of a letter explaining the circumstances leading to
his wounds, and a copy of a medical report.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 6 March 1969.  The application submitted in this case is
dated 7 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 limitations 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 was inducted into the Army on 7 March 1967, completed
training as an infantryman, and in August 1967 was assigned as a squad
leader with Company C, 4th Battalion, 12th Infantry of the 199th Infantry
Brigade in Vietnam.  The applicant was promoted to sergeant in March 1968.
He participated in four campaigns during his tour in Vietnam and the 4th
Battalion, 12th Infantry was awarded the Valorous Unit Award, the Republic
of Vietnam Gallantry Cross Unit Citation with Palm, and the Republic of
Vietnam Civil Actions Honor Medal First Class Unit Citation for its actions
during the time the applicant was assigned to that organization.  He
returned to the United States and was assigned to Fort Riley, Kansas.  The
applicant was released from active duty in the rank of sergeant on 6 March
1969 with an honorable characterization of service.  The awards reflected
on his DD Form 214 (Report of Transfer or Discharge) include the National
Defense Service Medal, Vietnam Campaign Medal, Vietnam Service Medal,
Combat Infantryman Badge, and Valorous Unit Award.

4.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows that
he received excellent character and conduct ratings in all of his duty
assignments.  That form, however, does not show award of the Purple Heart,
or that he had been wounded in action.

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

6.  In a 28 April 2004 rating decision the VA awarded the applicant a zero
percent disability rating for a shrapnel wound to his right arm.  In so
doing, the VA noted that although his service medical records showed no
evidence of a shrapnel wound, reasonable doubt was resolved in his favor
that this [his wound] was a residual from a combat injury.  The VA
indicated that x-rays confirmed shrapnel fragments in his arm, which were
also palpable.  A 23 June 2003 x-ray report of the applicant’s right
humerus showed that he had metallic foreign bodies in the mid humeral soft
tissues laterally with a thickened region of metallic density.

7.  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.

8.  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.  Notwithstanding the applicant’s contentions and the information
contained in the VA report that he submits with his request, there is no
evidence and the applicant has not submitted any to show that the metallic
fragments found in his right arm in 2003 were caused by hostile fire in
1968.  The VA, in awarding the applicant a service connected disability for
residuals [shrapnel] in his right arm, stated that his service medical
records showed no evidence of a shrapnel wound, and despite this lack of
evidence applied the premise of “reasonable doubt.”  The fact, however,
that the applicant was an infantryman in Vietnam with metallic fragments
discovered more than 25 years after his release from active duty, is not a
sufficient basis to conclude that he was wounded in action.  Consequently,
the applicant is not entitled to award of the Purple Heart.

2.  The evidence shows that the applicant, a combat infantryman, honorably
released from the Amy in the rank of sergeant, served his country
faithfully and honorably.  He is entitled to award of the Army Good Conduct
Medal.

3.  The applicant participated in four campaigns during his tour of duty in
Vietnam.  He is entitled to award of the Vietnam Service Medal with four
bronze service stars (one for each campaign).

4.  The applicant is entitled to award of the Republic of Vietnam Gallantry
Cross Unit Citation with Palm and the Republic of Vietnam Civil Actions
Honor Medal First Class Unit citation.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__JP  ___  ___TP __  ___KL __  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 four bronze service stars,
the Republic of Vietnam Gallantry Cross Unit Citation with Palm, and the
Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.

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.




                            _____ Jennifer Prater________
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040001817                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050215                                |
|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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