RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           17 February 2005
      DOCKET NUMBER:  AR20040002088


      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. Thomas D. Howard              |     |Chairperson          |
|     |Mr. John Infante                  |     |Member               |
|     |Ms. Maribeth Love                 |     |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, he never received the PH he was
entitled to.

3.  The applicant provides medical record extracts in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 11 September 1972.  The application submitted in this case
is dated
10 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’s record shows he enlisted in the Regular Army and
entered active duty on 16 June 1966.  He was trained in, awarded and served
in military occupational specialty (MOS) 11E (Armor Crewman).  His Enlisted
Qualification Record (DA Form 20) shows that he served in the Republic of
Vietnam (RVN) from 30 July 1966 through 29 July 1968.  During his RVN tour,
he was assigned to Company C, 2nd Battalion, 502nd Infantry from 10 January
through 9 June 1967 and to Headquarters and Headquarters Company (HHC), 2nd
Battalion, 502nd Infantry from 10 June 1967 through 23 July 1968.  Item 40
(Wounds) is blank and contains no entry indicating the applicant was
wounded in action and Item 41 (Awards and Decorations) does not include the
PH in the list of earned awards entered.  The applicant last audited this
record on 9 September 1972.

4.  On 20 March 1969, he was honorably discharged for the purpose of
immediate reenlistment.  The separation document (DD Form 214) he was
issued at this time indicates he earned the following awards:  National
Defense Service Medal (NDSM), Vietnam Service Medal (VSM), RVN Campaign
Medal (RVNCM), Combat Infantryman Badge (CIB), and Parachutist Badge.  The
PH is not included in the list of authorized awards and the applicant
authenticated this document with his signature in Item 32 (Signature of
Person Being Transferred or Discharged).
5.  On 21 March 1969 the applicant reenlisted for four years.  In April
1969, he was assigned to Europe where he served until being undesirably
discharged on 11 September 1970.  The DD Form 214 he was issued on this
date shows no additional awards earned and does not include the PH in the
list of authorized awards.  The applicant authenticated this document with
his signature in Item 32.

6.  The applicant provides extracts of his medical record that include
treatment records indicating that he sustained a superficial fragmentation
wound to his left groin as a result of a grenade explosion on 9 April 1967.
 A Clinical Record Cover Sheet (DA Form 8-275-3), dated 17 April 1967,
contains an entry indicating the applicant suffered a superficial fragment
wound when a grenade accidentally exploded on 9 April 1967 near Nhanh
Duong, RVN.

7.  During the processing of this case, a member of the Board staff
reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The
applicant’s name was not included in this official list of RVN battle
casualties.

8.   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.  This treatment must be supported by
records of medical treatment for the wound or injury received in action,
and must have been made a matter of official record.

9.  Paragraph 2-13 of the awards regulation contains guidance on award of
the Vietnam Service Medal and it states, in pertinent part, that a bronze
service star is authorized with this award for each campaign a member is
credited with participating in while serving in the RVN.  A silver service
star is used in lieu of five bronze service stars to denote participation
in five campaigns.  Table B-1 contains a list of campaigns and it shows
that during the applicant’s tenure of assignment in the RVN, he was
credited with participating in the Vietnam Counteroffensive Phase II,
Vietnam Counteroffensive Phase III, TET Counteroffensive 1968, Vietnam
Counteroffensive Phase IV and Vietnam Counteroffensive Phase V campaigns.
10.  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 (2 Battalion, 502nd Infantry)
earned the RVN Gallantry Cross with Palm Unit Citation and RVN Civil
Actions Honor Medal First Class Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH was 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.

2.  Although it is clear the applicant received a fragmentation wound from
a grenade explosion while serving in the RVN, the medical documents he
provided clearly show the wound was received as a result of an accidental
grenade explosion.  Further, there is no evidence of record showing the
grenade explosion was the direct result of or caused by enemy action.

3.  It is also clear from the evidence of record that the applicant’s chain
of command did not believe a PH was authorized for this wound, as evidenced
by the absence of an entry in Item 40 of his DA Form 20 and the absence of
his name from the DA RVN battle casualty roster.  Therefore, absent any
evidence to confirm the applicant’s wound was the direct result of or
caused by enemy action, 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 11 September 1972.  Therefore, the
time for him file a request for correction of any error or injustice
expired on 10 September 1975.  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.

5.  The evidence does shows that based on his RVN service and campaign
participation, the applicant is entitled to awards that were not included
on his separation document.  However, the omission of these awards is an
administrative matter that does not require Board action to correct.
Therefore, the Case Management Support Division (CMSD), St. Louis, Missouri
will be requested to make the necessary corrections 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

__TDH__  ___JI  ___  __MBL __  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 that based on his RVN service and campaign participation,
he is entitled to the Republic of Vietnam Gallantry Cross with Palm Unit
Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit
Citation and 1 silver service star with his Vietnam Service Medal; and by
providing him a corrected separation document that includes these awards.




            ____Thomas D. Howard___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040002088                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/02/17                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1972/09/11                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In lieu of CM                           |
|BOARD DECISION          |DENY with Admin Note                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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