RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           26 April 2005
      DOCKET NUMBER:  AR20040004921


      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. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Karen A. Heinz                |     |Member               |
|     |Mr. Lawrence Foster               |     |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 Purple Heart (PH) 1st Oak
Leaf Cluster, Silver Star and Bronze Star Medal.

2.  The applicant states, in effect, that he never received the two PHs he
was entitled to based on injuries he received while serving in the Republic
of Vietnam (RVN).  He also states that he never received word on being the
recipient of the SS for action above and beyond the call of duty.  He
further states that his separation document (DD Form 214) does not list the
PH or Bronze Star Medal (BSM) he was told were processing at the time of
his separation.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  Title 10 of the United States Code, section 1130 (10 USC 1130) provides
the legal authority for consideration of proposals for decorations not
previously submitted in timely fashion.  It allows, in effect, that upon
the request of a Member of Congress, the Secretary concerned shall review a
proposal for the award or presentation of a decoration (or the upgrading of
a decoration), either for an individual or a unit, that is not otherwise
authorized to be presented or awarded due to limitations established by law
or policy for timely submission of a recommendation for such award or
presentation.  Based upon such review, the Secretary shall make a
determination as to the merits of approving the award or presentation of
the decoration.

2.  The applicant requests award of the Silver Star and Bronze Star Medal.
However, there are no orders or other evidence on file in his Official
Military Personnel File (OMPF) that confirm his entitlement to these
awards.  In the absence of authority for these awards, the applicant may
request award of the Silver Star and Bronze Star Medal under the provisions
of 10 USC 1130.  The applicant has been notified by separate correspondence
of the procedures for applying for these awards under 10 USC 1130.  As a
result, they will not be discussed further in this Record of Proceedings.
3.  The applicant is requesting correction of an alleged error or injustice
that occurred on 19 April 1970.  The application submitted in this case is
dated
14 July 2004.

4.  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.

5.  The applicant’s record shows he enlisted in the Regular Army and
entered active duty on 12 September 1967.  He was trained in, awarded and
served in military occupational specialty (MOS) 95B (Military Police) and
the highest rank he attained while serving on active duty was specialist
four (SP4).

6.  The applicant’s Enlisted Qualification Record (DA Form 20) shows that
he served in the RVN from 15 February 1968 through 16 April 1970.  During
his RVN tour, he was assigned to the 194th MP Company from 18 February 1968
through 2 December 1968, performing duties in MOS 95B as a security guard.
He was also assigned to Company B, 716th MP Battalion from 3 December 1968
through 16 April 1970, performing duties in MOS 95B as a senior MP.  Item
40 (Wounds) is blank and contains no entry indicating he was wounded in
action, and Item 41 (Awards and Decorations) does not include the PH in the
list of earned awards entered.

7.  On 19 April 1970, the applicant was honorably separated after
completing a total of 2 years, 7 months and 8 days of active military
service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations
and Campaign Ribbons Awarded or Authorized) shows that he earned the
following awards during his active duty tenure:  National Defense Service
Medal, Army Commendation Medal, Vietnam Service Medal, Vietnam Campaign
Medal and Army Good Conduct Medal.
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 included in this official 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 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.

10.  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.

11.  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 following seven campaigns:  TET Counteroffensive 1968,
Vietnam Counteroffensive Phase IV, Vietnam Counteroffensive Phase V,
Vietnam Counteroffensive Phase VI, TET 69 Counteroffensive, Vietnam Summer-
Fall 1969 and Vietnam Winter-Spring 1970.

12.  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 units (194th MP Company and 716th MP
Battalion) earned two Meritorious Unit Commendations, 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 two awards of the PH was
carefully considered.  However, by regulation, in order to award the PH,
there must be evidence confirming the individual was wounded/injured as a
result of enemy action, the individual was treated for the combat related
wound/injury by military medical personnel and a record of this treatment
must have been made a matter of official record.

2.  The applicant’s record contains no indication that he ever received a
wound/injury as a direct result of, or that was caused by enemy action.
Further, his record contains no documents or orders showing he was ever
recommended for, or awarded the PH.  Item 40 of his DA Form 20 is blank and
contains no entry verifying a combat related wound/injury, and his name is
not included on the Vietnam Casualty Roster, the official list of RVN
battle casualties.  Therefore, the regulatory burden of proof necessary to
support award of the PH has not been satisfied in this case.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 19 April 1970.  Therefore, the time
for him file a request for correction of any error or injustice expired on
18 April 1973.  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.

4.  The evidence of record does show that based on his RVN service and
campaign participation, the applicant is entitled to two Meritorious Unit
Commendations, RVN Gallantry Cross with Palm Unit Citation, RVN Civil
Actions Honor Medal First Class Unit Citation and 1 silver service star and
2 bronze service stars with his Vietnam Service Medal.  The omission of
these awards from his record and separation document is an administrative
matter that does not require Board action to correct.  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

___MM__  ___LF  __  ___KAH _  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 did determine that an administrative error in the records of
the individual concerned should be corrected.  Therefore, the Board
requests that the CMSD-St. Louis correct his records to show his
entitlement to two awards of the Meritorious Unit Commendation, Republic of
Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil
Action Honor Medal First Class Unit Citation and 1 silver service star and
2 bronze service stars with his Vietnam Service Medal; and by providing him
a corrected separation document that reflects these awards.




            ____Melvin H. Meyer____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040004921                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/04/26                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1970/04/19                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |OS Rtn                                  |
|BOARD DECISION          |Deny w Admin Note                       |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  61   |107.0015                                |
|2.  46                  |107.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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