RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           9 June 2005
      DOCKET NUMBER:  AR20040006890


      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          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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, that he be awarded the Purple Heart
(PH).

2.  The applicant states, in effect, that he received a shrapnel wound to
his left shin in April 1969, during an exchange of fire with the enemy in
the Republic of Vietnam (RVN).  He claims that he was given the PH at a
field hospital at a rear firebase after being wounded.

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 7 October 1970.  The application submitted in this case is
dated
26 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 8 October 1968.  He was trained in, awarded and served in
military occupational specialty (MOS) 76S (Automotive Repair Parts
Specialist) 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 23 March 1969 through 5 December 1969.  During
his RVN tour, he was assigned to Headquarters and Headquarters Battery
(HHB) 2, 321st Artillery, 82nd Airborne Division.

5.   Item 40 (Wounds) of the applicant’s DA Form 20 is blank, indicating he
was never wounded/injured in action.  Item 41 (Awards and Decorations)
shows that during his active duty tenure, he earned the National Defense
Service Medal (NDSM), Vietnam Service Medal (VSM), Army Commendation Medal
(ARCOM), RVN Campaign Medal, RVN Gallantry Cross with Palm Unit Citation
and Expert Qualification Badge with Rifle Bar.  The PH is not included in
this list of earned awards.  The applicant last audited this record on 13
January 1970.
6.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no
orders and/or other documents to show he was ever wounded/injured in
action, or that he was ever recommended for or awarded the PH.  The MPRJ is
also void of any medical treatment documents that indicate he was ever
treated for a combat related wound/injury.

7.  On 7 October 1970, the applicant was honorably separated after
completing
2 years of active military service.  The separation document (DD Form 214)
he was issued shows he earned the following awards during his active duty
tenure:  Bronze Star Medal (BSM), ARCOM, NDSM, VSM, RVN Campaign Medal and
RVN Gallantry Cross with Palm Unit Citation.  The applicant authenticated
this document with his signature in Item 32 (Signature of Person Being
Transferred or Discharged).

8.  In connection with 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 on this list.

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 the VSM.
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 RVN campaigns.
It shows that during the applicant’s tenure of assignment in the RVN,
campaign credit was authorized for the TET 69 Counteroffensive, Vietnam
Summer-Fall 1969, and Vietnam Winter-Spring 1970 campaigns.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he received a shrapnel wound to the
left shin and received 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 he was treated by
military medical personnel for the wound for which the award is being made
and a record of this medical treatment must have been made a matter of
official record.

2.  The evidence of record fails to show that the applicant was ever
wounded/injured in action, or that he was ever treated for a combat related
wound/injury.  Item 40 of his DA Form 20 is blank, which indicates he was
never wounded/injured in action.  The PH is not included in the list of
awards contained in Item 41 and the applicant last audited this record on
13 January 1970, subsequent to completing his RVN tour.  His audit
constitutes his verification that the information contained in the record,
including Items 40 and 41, was correct as of the audit date.

3.  Further, the PH is not included in the list of awards contained in the
list of authorized awards contained in the applicant’s DD Form 214.  The
applicant authenticated this document with his signature on 7 October 1970,
the date of his separation.  This served as his verification that the
information contained on the DD Form 214, to include the list of authorized
awards, was correct the time the document was issued.  Finally, his name is
not included on the Vietnam Casualty Roster, the official DA 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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 October 1970.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 6 October 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.

5.  The evidence of record does show that the applicant is entitled to the
Expert Qualification Badge and 3 bronze service stars with his VSM.  The
omission of these awards from his DD Form 214 is an administrative matter
that does not require Board action.  The Case Management Support Division
(CMSD), St. Louis, Missouri will be requested to make the necessary
administrative correction to his record 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

___MHM_  ___LE  __  ___CAK    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 Expert Qualification Badge with
Rifle Bar and 3 bronze service stars with his Vietnam Service Medal; and by
providing him a corrected separation document that includes these awards.




            ____Melvin H. Meyer_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040006890                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/06/09                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1970/10/07                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY with Admin Note                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  61   |107.0015                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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