RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           8 March 2005
      DOCKET NUMBER:  AR20040002135


      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. Mark D. Manning               |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Paul M. Smith                 |     |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 received numerous shrapnel
wounds on his arms, upper body and lower right leg when a rocket struck the
helicopter he was working on in the Republic of Vietnam (RVN).  He claims
that he was medically evacuated to a hospital in Pleiku, RVN, where surgery
was performed on him.  He was then transferred to a hospital in Korea and
then on to
Walter Reed Army Medical Center (WRAMC) in Washington D.C.  He claims that
upon his arrival at the hospital, he was offered the PH, but he declined
the award.  He states that he now believes he erred in not accepting the PH
and requests it now be awarded.

3.  The applicant provides a copy of his separation document (DD Form 214)
and a Department of Veterans Affairs (VA) benefit award letter in support
of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 22 May 1969.  The application submitted in this case is
dated
17 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 23 May 1966.  He was trained in, awarded and served
in military occupational specialty (MOS) 35K (Avionics Repairer) and the
highest rank he attained while serving on active duty was specialist five
(SP5).
4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows that
he served in the RVN from 12 October 1967 through 10 June 1968.  During his
RVN tour, he was assigned to Headquarters Troop, 7th Squadron, 17th Cavalry
Regiment, performing duties in MOS 35K as an avionics repairer.

5.  Item 38 (Record of Assignments) of the applicant’s DA Form 20 shows he
was a patient at WRAMC from 17 June through 26 August 1968.  Item 40
(Wounds) of the applicant’s DA Form 20 is blank and contains no entry
indicating the applicant was wounded in action.  Item 41 (Awards and
Decorations) does not include the PH in the list of earned awards entered.
The applicant last audited this record on 10 April 1969.

6.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no
orders or documents that indicate the applicant was ever wounded/injured in
action.  The MPRJ is also void of any medical records that indicate the
applicant was ever treated for, or that his hospitalization at WRAMC was
the result of, a combat related wound/injury.

7.  On 22 May 1969, the applicant was honorably separated at the expiration
of his term of service.  The DD Form 214 he was issued at this time
indicates he earned the following awards during his active duty tenure:
Army Commendation Medal, Army Good Conduct Medal, National Defense Service
Medal, Vietnam Service Medal, RVN Campaign Medal with 60 Device, Expert
Qualification Badge with Rifle Bar (M-16), Sharpshooter Qualification Badge
with Rifle Bar
(M-14) and 1 Overseas Bar.

8.  The PH is not included in the list of authorized awards contained on
the applicant’s DD Form 214.  The applicant authenticated the separation
document with his signature in Item 32 (Signature of Person Being
Transferred or Discharged).

9.  The applicant provides a VA benefits award letter, dated 22 September
1969. This document shows the applicant was granted service connection for
“wound to the abdomen, wound right elbow, scars, back and right ankle”.
This document provides no medical record verification that these
wounds/injuries were combat related.
10.  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.

11.  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. In order to support awarding a member the PH, it is necessary to
establish that the wound for which the award is being made was received as
a direct result of, or was caused by enemy action, that the wound required
treatment by a medical officer and a record of this treatment must have
been made a matter of official record.

12.  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.

13.  Table B-1 of the awards regulation 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 III, TET
Counteroffensive 1968 and Vietnam Counteroffensive Phase IV.

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 (Headquarters Troop, 7th
Squadron Battalion, 17th Cavalry Regiment) earned the RVN Gallantry Cross
with Palm 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 the wound/injury for which the award is being
made was the direct result of, or caused by enemy action.
2.  It is clear the applicant was medically evacuated from the RVN to WRAMC
and remained there as a patient for just over two months.  However, there
are no medical treatment records on file that confirm the injury/wound that
caused this medical evacuation was combat related.

3.  Further, Item 40 of the applicant’s DA Form 20 is blank, which
indicates he was never wounded/injured as a result of enemy action.  The PH
is not included in the list of authorized awards contained in either his DA
Form 20 or DD Form 214.  Finally, his name is not included on the Vietnam
Casualty Roster, the official DA list of RVN battle casualties.

4.  The veracity of the applicant’s claim that he was wounded/injured while
serving in the RVN is not in question.  However, absent any evidence to
corroborate that the wound/injury that resulted in his medical evacuation
from the RVN was received as a direct result of, or was caused by enemy
action, the regulatory burden of proof necessary to support award of the PH
has not been satisfied in this case.  Therefore, award of 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 now under consideration on 22 May 1969.  Therefore, the time for
him file a request for correction of any error or injustice expired on 21
May 1972. 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 does shows that based on his RVN service and campaign
participation, the applicant is entitled to the RVN Gallantry Cross with
Palm Unit Citation and 3 bronze service stars with his Vietnam Service
Medal.  The omission of these awards from his record 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

___MDM_  ___PMS_  ___BJE__  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 and 3 bronze service stars for wear with his Vietnam Service
Medal; and by providing him a corrected separation document that includes
these awards.




            ____Mark D. Manning____
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040002135                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/08                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1969/05/22                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY with Admin Note                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  61   |107.0061                                |
|2.  46                  |107.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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