RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           7 June 2005
      DOCKET NUMBER:  AR20040005196


      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. Karen Y. Fletcher             |     |Chairperson          |
|     |Mr. Kenneth L. Wright             |     |Member               |
|     |Mr. William D. Powers             |     |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 service medical records show
he received shrapnel wounds to both his left hand and back.  Further, he
has received a service connected rating from the Department of Veterans
Affairs (VA) for the scars from these shrapnel wounds.

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

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant’s case be fairly
considered and resolved, and that all reasonable doubt that arises be
resolved in favor of the applicant.

2.  Counsel states, in effect, that all pertinent records, to include
service medical records and VA medical records should be obtained by the
Board before a decision is rendered on this case.

3.  Counsel provides a statement in support of the application.  However,
no documentary evidence is submitted.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 12 June 1969.  The application submitted in this case was
received on 5 August 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 record shows that he enlisted in the Army and entered
active duty on 4 November 1966.  He was trained in, awarded and served in
military occupational specialty (MOS) 16P (Automatic Weapons Crewman), and
the highest rank he attained while serving on active duty was specialist
four (SP4).
4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows that
he served in the RVN from 26 October 1967 through 12 June 1969.  During his
RVN tour, he was assigned to Battery D, 71st Artillery.  Item 40 (Wounds)
is blank and contains no entry indicating he was wounded in action.  Item
41 (Awards and Decorations) does not include the PH in the list of earned
awards.

5.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no
orders, or other documents that indicate he was ever recommended for, or
awarded the PH.  Further, no service medical records were included with the
records provided the Board.

6.  On 12 June 1969, the applicant was honorably separated after completing

2 years, 7 months and 9 days of active military service.  The DD Form 214
he was issued indicates he earned the following awards during his tenure on
active duty:  National Defense Service Medal, Vietnam Service Medal and RVN
Campaign Medal.  The PH is not included in the list of authorized awards.
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 was not included in 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 awarding the PH.  It states, in pertinent
part, that the PH is awarded to any member who has been wounded or killed
in action.

9.  The awards regulation defines a wound 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.  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.

11.  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 (Battery D, 71st Artillery)
earned the Valorous Unit Award, Meritorious Unit Commendation, RVN
Gallantry Cross with Palm Unit Citation and RVN Civil Actions Honor Medal
First Class Unit Citation.  It further shows that he was credited with
participating in the following six campaigns:  Vietnam Counteroffensive
Phase III, TET Counteroffensive, Vietnam Counteroffensive Phase IV, Vietnam
Counteroffensive Phase V, Vietnam Counteroffensive Phase VI and TET 69
Counteroffensive.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records)
prescribes the policies and procedures for correction of military records
by the Secretary of the Army, acting through the Army Board for Correction
of Military Records (ABCMR).  Paragraph 2-2 outlines the functions of the
ABCMR.  It states, in pertinent part, that the ABCMR will decide cases on
the evidence of record.  It is not an investigative body.  Paragraph 2-9
contains guidance on the burden of proof.  It states, in pertinent part,
that the ABCMR begins its consideration of each case with the presumption
of administrative regularity.  The applicant has the burden of proving an
error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH and the supporting
statement provided by counsel were carefully considered.  However, by
regulation, in order to support award of the PH it is necessary to
establish that a Soldier was wounded as a result of enemy action, that he
was treated for that combat related wound, and that a record of this
treatment was made a matter of official record.

2.  The evidence of record fails to show the applicant sustained a combat
related wound/injury while serving in the RVN, and the applicant has failed
to provide independent evidence to confirm the shrapnel wounds for which he
received a service connected rating from the VA were received as a direct
result of, or caused by enemy action.
3.  Further, Item 40 of the applicant’s DA Form 20 is blank and his name is
not included on the DA Vietnam Casualty Roster, the official list of RVN
battle casualties.  The PH is also not included in the list of awards
contained in Item 41 of his DA Form 20, or in the list of awards contained
on his DD Form 214.  This indicates he was not awarded or entitled to the
PH at the time of his separation from active duty.  Therefore, the
regulatory burden of proof necessary to support award of the PH has not
been satisfied in this case.

4.  Counsel’s suggestion that the Board obtain the applicant’s service
medical records and VA medical records was also considered.  However, by
regulation the ABCMR begins it consideration of each case with a
presumption of regularity. The burden of proving otherwise rests with the
applicant.  Further, the ABCMR is not an investigative body and considers
cases based on the evidence and records that are provided.  If the
applicant, or counsel have military medical records, VA medical records, or
any other records or documents that pertain to the issue that are not
included in his MPRJ, or can obtain these documents, they should have been
included with the application for the Board to consider.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 June 1969; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 11 June 1972.  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.

6.  The evidence does show that based on his RVN service and campaign
participation, the applicant is entitled to the Valorous Unit Award,
Meritorious Unit Citation, RVN Gallantry Cross with Palm Unit Citation, RVN
Civil Actions Honor Medal First Class Unit Citation and 1 silver service
star and 1 bronze service star 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.  As a result, 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

____KYF   ___KLW _  __WDP__  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 Valorous Unit Award, Meritorious Unit Citation,
Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of
Vietnam Civil Actions Honor Medal First Class Unit Citation and 1 silver
service star and 1 bronze service star with his Vietnam Service Medal; and
by providing him a corrected separation document that includes these
awards.




            ____Karen Y. Fletcher____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040005196                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/06/07                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1969/06/12                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |OS Rtn                                  |
|BOARD DECISION          |DENY with Adm Note                      |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  61   |107.0015                                |
|2.  46                  |107.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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