RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         01 MARCH 2005
      DOCKET NUMBER:  AR20040003154


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Walter Morrison               |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Mr. Antonio Uribe                 |     |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 a third Purple Heart.

2.  The applicant states he was wounded in the neck on 6 May 1969 and that
he was wounded twice within 90 minutes on 5 September 1969.  He states that
he sustained a wound to his hand on 5 September 1969 and was “tagged” to be
evacuated, but was under heavy mortar attack.  He states that about 90
minutes later, as he was walking to the evacuation pad, they came under
mortar attack and he was hit again, this time in both hands and both legs.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 30 September 1970.  The application submitted in this
case is dated
17 June 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.  Records available to the Board indicate that the applicant entered
active duty on 1 October 1968.  He was trained as an infantryman.

4.  In March 1969 the applicant was assigned to duties as a rifleman with
the 2nd Battalion, 8th Cavalry, 1st Cavalry Division.

5.  On 6 May 1969 the applicant was wounded as a result of hostile action
and awarded the Purple Heart.  Orders issued by the 1st Cavalry Division
confirmed the award.

6.  In July 1969 he was awarded the Combat Infantryman Badge.  Orders
issued by the 1st Cavalry Division confirmed the award, but the information
was omitted from his separation document.

7.  According to an entry in item 40 (wounds), on the applicant’s
Department of the Army Form 20 (Enlisted Qualification Record), a Western
Union Telegram, and orders issued by the 1st Cavalry Division confirming
award of the Purple Heart, the applicant sustained multiple fragment wounds
to his hands and legs on 5 September 1969.  The Western Union Telegram
indicates that the applicant was wounded “while at an aircraft landing zone
when the area came under rocket and mortar attack by a hostile force.”
There is no indication in any of the documents that he was wounded earlier.

8.  The applicant departed Vietnam in March 1970 and was assigned to Fort
Hood, Texas for the duration of his military service.  He was released from
active duty on 30 September 1970.  His separation document reflects
entitlement to two Purple Hearts, both of which were confirmed in orders
issued by the 1st Cavalry Division.

9.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple
Heart is awarded for wounds 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 by a
medical officer, and the medical treatment must have been made a matter of
official record.  A Purple Heart is authorized for the first wound suffered
under listed above, but not more than one award will be made for more than
one wound or injury received at the same instant or from the same missile,
force, explosion, or agent.

10.  United States Army Vietnam Regulation 672-1 also provided, in
pertinent part, for award of the Purple Heart.  The regulation stated that
authority to award the Purple Heart was delegated to hospital commanders.
Further, it directed that all personnel treated and released within 24
hours would be awarded the Purple Heart by the organization to which the
individual was assigned.  Personnel requiring hospitalization in excess of
24 hours or evacuation from Vietnam would be awarded the Purple Heart
directly by the hospital commander rendering treatment.

11.  In 1999 the applicant petitioned for replacement decorations for
medals he was awarded during his military service.  He made no mention of
entitlement to a third Purple Heart in that correspondence.

12.  A review of Department of the Army Pamphlet 672-3 (Unit Citation and
Campaign Participation Credit Register) notes the applicant’s unit was
credited with participating in three designated campaigns (TET 69
Counteroffensive, Vietnam Summer-Fall 1969, and Vietnam Winter-Spring 1970)
during the applicant’s period of assignment.  Three bronze service stars on
the Vietnam Service Medal, which is recorded on his separation document,
should reflect his campaign participation vice the one bronze star
currently shown.  The unit was also awarded the Republic of Vietnam Civil
Actions Honor Medal First Class Unit Citation during his tenure with the
organization.  The unit award was also omitted from his separation
document.

DISCUSSION AND CONCLUSIONS:

1.  Unfortunately, there is no medical evidence which confirms that the
applicant was wounded during two separate incidents on 5 September 1969.
In the absence of such evidence, there is no basis to award the applicant
an additional Purple Heart.

2.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 September 1970; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
29 September 1973.  However, the applicant 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.

4.  Evidence shows that the applicant’s records contain administrative
error which does not require action by the Board.  Therefore,
administrative correction of the applicant’s records will be accomplished
by the Case Management Support Division (CMSD), St. Louis, Missouri, 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

___WM  _  __RD ___  ___AU __  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 award of the Combat Infantryman Badge, three bronze
service stars on his Vietnam Service Medal vice the one currently shown,
and entitlement to the Republic of Vietnam Civil Actions Honor Medal First
Class Unit Citation.



                                  ____  Walter Morrison________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040003154                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050301                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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