RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           3 May 2005
      DOCKET NUMBER:  AR20040004980


      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. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Ms. Diane J. Armstrong            |     |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 his separation document (DD Form
214) does not reflect that he received the PH for being wounded while
serving in the Republic of Vietnam (RVN).

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 1 August 1967.  The application submitted in this case is
dated
29 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 2 August 1965.  He was trained in, awarded
and served in military occupational specialty (MOS) 11D (Armor Intelligence
Specialist) and the highest rank he attained while serving on active duty
was sergeant (SGT).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) confirms
that he served in the RVN from 6 January 1966 through 5 January 1967.
During his RVN tour, he was assigned to Company A, 1st Battalion, 52nd
Infantry, performing duties in MOS 11C as an ammunition bearer.  Item 40
contains an entry indicating he received a fragmentation wound to the face
in 1966.  Item 41 (Awards and Decorations) does not include the PH in the
list of earned awards, but does contain a pencil entry indicating that he
was not issued the PH for his injury.
5.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no
indication the applicant received a wound/injury as a direct result of, or
that was caused by enemy action while serving in the RVN.  The only medical
treatment document on file shows that while serving in the RVN, the
applicant was treated for a knee injury on 28 November 1966.  The MPRJ also
contains a copy of his final separation final examination (SF 88).  This
document gives no indication the applicant was ever wounded/injured in
action.

6.  On 1 August 1967, 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 1 bronze service star, RVN Campaign
Medal, Combat Infantryman Badge and Expert Qualification Badge with Rifle
and Mortar Bars.  The applicant authenticated this document with his
signature in Item 32 (Signature of Person Being Transferred or Discharged).


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 is not included on this roster.

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 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.

9.  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.  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 I and Vietnam Counteroffensive Phase II campaigns.

10.  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 unit (1st
Battalion, 27th Infantry Regiment) earned the Valorous Unit Award, 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.
However, although there are indications in the record that he received a
fragmentation wound to the face, while serving in the RVN, there is no
evidence this wound was received as a direct result of, or that it 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.

2.  Notwithstanding the entries in Items 40 and 41 of his DA Form 20, there
are no orders or documents on file in his MPRJ that indicate he was ever
recommended for, or awarded the PH by proper authority.  Further, he
authenticated his DD Form 214 with his signature on the date he was
separated from active duty.  In effect, this was his verification that
information contained on the DD Form 214, to include the list of earned
awards, was correct at the time the document was prepared and issued.
Thus, 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.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH now under consideration on 1 August
1967.  Therefore, the time for him to file a request for correction of any
error or injustice expired on 31 July 1970.  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 record confirms that based on his RVN service and campaign
participation, the applicant is entitled to the Valorous Unit Award,
Republic of Vietnam Gallantry Cross with Palm Unit Citation, RVN Civil
Actions Honor Medal First Class Unit Citation and 2 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

___DJA _  ___PHM_  ___SLP__  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 Valorous Unit Award, Republic of
Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil
Actions Honor Medal First Class Unit Citation and 2 bronze service stars
with his Vietnam Service Medal; and by providing him a corrected separation
document that includes these awards.




            ____Shirley L. Powell_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040004980                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/05/03                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1967/08/01                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY w Adm Note                         |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  61   |107.0015                                |
|2.  46                  |107.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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