RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           10 May 2005
      DOCKET NUMBER:  AR20040004920


      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:

|     |Ms. Jennifer L. Prater            |     |Chairperson          |
|     |Mr. Bernard P. Ingold             |     |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, in effect, award of the Purple Heart (PH).

2.  The applicant states, in effect, that the PH he is entitled to was
never added to his separation document (DD Form 214).

3.  The applicant provides a copy of his DD Form 214 in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 18 June 1971.  The application submitted in this case is
dated
22 July 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’s military record shows that he was inducted into the
Army and entered active duty on 19 June 1969.  He was trained in, awarded
and served in military occupational specialty (MOS) 11B (Infantryman) and
the highest rank he attained while serving on a active duty was specialist
four (SP4).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) confirms
that he served in the Republic of Vietnam (RVN) from 5 December 1969
through
27 August 1970.  During his RVN tour, he was assigned to Company A,
1st Battalion, 2nd Infantry Regiment from 13 December 1969 through 2 April
1970.  He was also assigned to Company C, 2nd Battalion, 506th Infantry
Regiment from 2 April through 14 July 1970.  On 15 July 1970, he was
medically evacuated to Japan and assigned to the 249th General Hospital as
a patient.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 contains an entry
indicating that the applicant received a fragmentation wound to the face
and right shoulder on 2 July 1979.  Item 41 (Awards and Decorations) does
not include the PH in the list of earned awards.  The applicant last
audited his DA Form 20 on
21 December 1970.

6.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no
indication that the applicant’s fragmentation wound was received as a
direct result of, or was caused by enemy action.  The applicant was
medically evacuated from the RVN, but there are no medical treatment
records on file to confirm the reason of this medical evacuation.

7.  On 18 January 1971, the applicant was honorably released from active
duty after completing 2 years of active military service.  The DD Form 214
he was issued at that time shows the he earned the following awards during
his tenure on active duty:  National Defense Service Medal, Army
Commendation Medal, Vietnam Service Medal (VSM) with 2 bronze service
stars, RVN Campaign Medal with 1960 Device, Combat Infantryman Badge,
Sharpshooter Qualification Badge with Rifle Bar and 1 Overseas Bar.  The
applicant authenticated this document with his signature in Item 32
(Signature of Person Being Transferred or Discharged).

8.  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 found on this list of RVN battle casualties.

9.  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 award of the PH.  It states, in pertinent
part, that in order to award a PH there must be evidence that the wound for
which the award is being made was received as a result of enemy action, the
wound must have required medical treatment and the medical treatment must
have been made a matter of official record.
10.  Paragraph 2-13 of the awards regulation contains guidance on award of
the VSM 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.

11.  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 Winter-Spring 1970, Sanctuary
and Vietnam Counteroffensive Phase VII campaigns.

12.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit
Register) establishes the eligibility of individual members for unit
citation badges awarded during the Vietnam Conflict.  It confirms that
during his tenure of assignment in the RVN, the applicant’s units (2nd and
506th Infantry Regiments) 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, that the wound required treatment by a medical officer, and that
the record of medical treatment was made a matter of official record.

2.  Although there are indications in the record that the applicant
received a fragmentation wound to the face and right shoulder, while
serving in the RVN, there is no evidence this wound was received as a
direct result of, or was caused by enemy action.  Further, there are no
medical treatment files in the MPRJ that indicate he was ever treated for a
combat related wound/injury.

3.  Notwithstanding the entry in Item 40 his DA Form 20, there are no
orders or documents on file in his MPRJ that indicate the applicant was
ever recommended for, or awarded the PH by proper authority.
4.  Further, Item 41 of his DA Form 20 does not include the PH in the list
of awards he earned while serving on active duty and he last audited the DA
Form 20 on 21 December 1970.  This served to verify that the list of awards
in Item 41 of the DA Form 20 was correct at that time.

5.  The record also shows that the applicant authenticated his DD Form 214
with his signature on 18 January 1971, which in effect was his verification
that the information contained on his separation document, to include the
list of awards, was correct at the time he signed the document was prepared
and issued.

6.  Absent any corroborating evidence of record to confirm his wound was
combat-related, the regulatory burden of proof necessary to support award
of the PH has not been satisfied in this case.

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

8.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH now under consideration on 18 January
1971.  Therefore, the time for him to file a request for correction of any
error or injustice expired on 17 January 1974.  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.

9.  The record confirms that based on his RVN service and campaign
participation, the applicant is entitled to the Republic of Vietnam
Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal
First Class Unit Citation and 3 bronze service stars with his VSM.  The
omission of these awards is an administrative matter that does not require
Board action.  Thus, correction of
his records will be made 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

___BPI__  ___AU __  ___JLP __  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 his entitlement to the Republic of Vietnam Gallantry
Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor
Medal First Class Unit Citation and
3 bronze service stars with his Vietnam Service Medal; and by providing him
a corrected separation document that includes these awards.




            ____Jennifer L. Prater_____
                    CHAIRPERSON



           INDEX

|CASE ID                 |AR20040004920                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/05/10                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1971/01/18                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY with Admin Note                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  61   |107.0015                                |
|2.  46                  |107.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]