RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           12 May 2005
      DOCKET NUMBER:  AR20040006316


      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. Fred Eichorn                  |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 he was wounded by the enemy while
on a firing mission while serving in the Republic of Vietnam (RVN).  He
claims that he was hit by a mortar and could not hear out of his ear for
quite some time.  He states that the mortar blew a whole in his right ear
drum.  As a result, he feels that since the injury was caused by the enemy,
and given it caused bodily injury, he should be entitled to the PH.  He
states that he received medical treatment for this injury throughout the
time he served in the RVN.

3.  The applicant provides a copy of his separation document (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 19 February 1971.  The application submitted in this case
is dated 17 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 was inducted into the Army and
entered active duty on 18 July 1969.  He was trained in, awarded and served
in military occupational specialty (MOS) 13A (Basic Field Artilleryman).
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 16 December 1969 through 17 February 1971.
During his RVN tour, he was assigned to the Howitzer Battery, 3rd Squadron,

11th Armored Cavalry Regiment.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 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.

6.  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.

7.  The MPRJ contains a Chronological Record of Medical Care (SF 600) that
shows the applicant was treated for an ear injury on 11 December 1970.
This document indicates he was standing under a Howitzer when it
discharged.  The treatment record gives no indication that the ear injury
was combat related.

8.  The MPRJ also contains a copy of a Report of Medical Examination (SF
88), dated 19 February 1971, which documents the applicant’s separation
physical examination.  The clinical evaluation portion of the SF 88 reveals
the examining physician found the applicant’s ears were normal.  The
applicant was determined to be medically qualified for separation, and this
document contains no reference to him ever having received a battle related
wound/injury.

9.  On 19 February 1971, the applicant was honorably separated after
completing 1 year, 7 months, and 2 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,  Army Commendation
Medal, Army Good Conduct Medal, Vietnam Service Medal, RVN Campaign Medal,
Expert Qualification Badge with Rifle Bar and 2 Overseas Bars. 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).

10.  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.
11.  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.

12.  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.

13.  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.

14.  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
Counteroffensive and Vietnam Counteroffensive Phase VII campaigns.

15.  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 (Howitzer Battalion, 11th
Armored Cavalry Regiment) Valorous Unit Award and RVN Gallantry Cross with
Palm 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.
2.  It is clear the applicant was treated for an ear problem that resulted
from him standing under a Howitzer when it discharged.  However, the
medical documents on file fail to show this injury was received as a direct
result of, or that it was caused by enemy action.  The fact that medical
treatment records exist, but there is no PH recommendation from the chain
of command, or from responsible medical officials, appears to support a
conclusion that the injury was accidental.

3.  In view of the facts of this case, it appears the officials responsible
for recommending and/or awarding the PH did not believe PH was authorized
for the applicant’s ear injury.  This is evidenced by the absence of an
entry in Item 40 of his DA Form 20, and the absence of his name from the DA
RVN casualty roster, the official list of RVN battle casualties.
Therefore, absent any evidence of record to confirm the applicant’s injury
was received as a direct result of, or was caused by enemy action, the
regulatory burden of proof necessary to support award of the PH has not
been satisfied in this case.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 19 February 1971.  Therefore, the time
for him file a request for correction of any error or injustice expired on
18 February 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.

5.  The evidence does shows that based on his RVN service and campaign
participation, the applicant is entitled to the Valorous Unit Award, RVN
Gallantry Cross with Palm Unit Citation and 3 bronze service stars with his
Vietnam Service Medal.

6.  The omission of the awards outlined in the preceding paragraph from the
applicant’s record and separation document is an administrative matter that

does not require Board action to correct.  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

___FE __  ___LDS _  ___MJF__  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, Republic of Vietnam Gallantry
Cross with Palm Unit Citation, and 3 bronze service stars with his Vietnam
Service Medal; and by providing him a corrected separation document that
includes these awards.




            ____Fred Eichorn________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040006316                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/05/1                               |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1971/02/19                              |
|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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