RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 July 2005
      DOCKET NUMBER:  AR20040006937


      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             |
|     |Ms. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Mr. Leonard Hassell               |     |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, correction of his DD Form 214 to
show award of the Purple Heart.

2.  The applicant states, in effect, that his records do not show award of
the Purple Heart.

3.  The applicant provides a copy of DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge) with an effective date 15
September 1971; a copy of VA Form 21-4138 (Statement in Support of Claim),
dated 13 April 2004; and a incomplete copy of Department of Veterans
Affairs (DVA) Rating Decision, dated 8 January 1973.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 15 September 1971, the date of his separation from active duty.
 The application submitted in this case is dated 23 October 2003; however,
it was not received until 10 September 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 was inducted on 27 August 1969.  After completion of
basic and advanced individual training, he was awarded military
occupational specialty 11C (Infantry Indirect Fire Crewmember).  From
5 February 1970 through 2 October 1970, the applicant was assigned to
Company C, 2nd Battalion, 5th Calvary of the 1st Calvary Division while
serving in Vietnam.  The applicant was honorably discharged on 15 September
1971.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and
Campaign Ribbons Awarded or Authorized) on the applicant's DD Form 214 does
not show award of the Purple Heart.

5.  Item 38 (Record of Assignments) of the applicant's DA Form 20 (Enlisted
Qualification Record) shows an entry that on 1 October 1970, the applicant
was a "patient" at "USAH RYIS" [US Army Hospital Ryukyu Islands].  There is
another entry which shows that on 3 November 1970, the applicant was
evacuated to the Continental United States.  There is no medical
documentation in the applicant's records to show why he was hospitalized
and evacuated.

6.  Item 40 (Wounds) of the applicant's DA Form 20 does not show any
entries of wounds received.  Item 41 (Awards and Decorations) does not show
award of the Purple Heart.

7.  There are no general orders in the applicant's records to show he was
awarded the Purple Heart.

8.  The applicant submitted a copy of a VA Rating Decision which indicates
that his service medical records contained the entry:  "2/70 FW lower left
back with X-rays showing fragment (area not specified); subsequent removal
and no residual disability indicated."  [February 1970 Fragment Wound lower
left back with X-rays showing fragment (area not specified)]

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part,
that the Purple Heart is awarded for a wound sustained as a result of
hostile action.  Substantiating evidence must be provided to verify that
the wound was the result of hostile action, the wound must have required
treatment by a medical officer, and the medical treatment must have been
made a matter of official record.

10.  Army Regulation 600-8-22 provides, in pertinent part, for award of the
Purple Heart to individuals wounded or killed as a result of “friendly
fire” in the “heat of battle” as long as the “friendly” projectile or agent
was released with the full intent of inflicting damage or destroying enemy
troops or equipment.

11.  Review of the applicant's DD Form 214 indicates that he is entitled to
additional awards that are not shown on this form.

12.  The applicant's DD Form 214 does not list awards of the Good Conduct
Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

13.  Item 38 of the applicant's DA Form 20 also shows that all of his
recorded conduct and efficiency ratings were excellent.

14.  Army Regulation 672-5-1 (Awards), in effect at the time when the
service member was discharged, required that throughout a qualifying period
of service for award of the Good Conduct Medal the enlisted person must
have had all “excellent” conduct and efficiency ratings and no convictions
by a court-martial.  This period is 3 years except in those cases when the
period for the first award ends with the termination of a period of Federal
military service.

15.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign
Participation Credit Register) lists the unit awards received by units
serving in Vietnam.  This document shows the 2nd Battalion, 5th Calvary, to
which the applicant was assigned, was cited for award of the Republic of
Vietnam Gallantry Cross with Palm Unit Citation for the period 1 March 1970
to 30 October 1970 by Department of the Army General Order Number 55, dated
1971.

16.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign
Participation Credit Register) lists campaigns participated by units during
the Vietnam War.  This document shows that, at the time of the applicant’s
assignment to the Company C, 2nd Battalion, 5th Calvary of the 1st Calvary
Division, it participated in the Vietnam Winter-Spring 1970, DA Sanctuary
Counteroffensive, and the Vietnam Counteroffensive, Phase VII.

17.  Appendix B of Army Regulation 600-8-22 shows that the applicant
participated in three campaigns during his tour of duty in Vietnam.  This
same regulation states that a bronze service star will be awarded for wear
on the Vietnam Service Medal for participation in each campaign.  The
applicant's DD Form 214 shows award of the Vietnam Service Medal, but with
only two bronze service stars.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show
award of the Purple Heart.

2.  Evidence of record shows the applicant sustained a fragment wound to
his lower left back in February 1970.  The applicant was serving in Vietnam
at this time; therefore, it is reasonable to assume that he was wounded as
a result of enemy action or friendly fire, both of which would result in
award of the Purple Heart.  In view of these facts, the applicant is
entitled to award of the Purple Heart for wounds sustained on or about 26
February 1970.

3.  The applicant distinguished himself by his conduct and efficiency as
evidenced by his ratings.  Therefore, the applicant should be awarded the
Good Conduct Medal based on completion of qualifying service from 27 August
1969 through 15 September 1971 ending with termination of a period of
Federal military service.

4.  Evidence of record shows that while the applicant was assigned to
Company C, 2nd Battalion, 5th Calvary of the 1st Calvary Division, the unit
was awarded the Republic of Vietnam Gallantry Cross with Palm Unit
Citation.  Therefore, the applicant is entitled to correction of his
records to show this foreign unit award.

5.  Evidence also shows that the applicant participated in three campaigns
during his service in Vietnam.  Therefore, he is entitled to award of three
bronze service stars to be worn on his Vietnam Service Medal and to
correction of his records to show the Vietnam Service Medal with three
bronze service stars.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 September 1971.  Therefore, the
time for the applicant to file a request for correction of any error or
injustice expired on 14 September 1974.  Although the applicant did not
file within the ABCMR's statute of limitations, it is appropriate to waive
failure to timely file in this case based on the fact there is no statute
of limitations on requests for award of the Purple Heart.

BOARD VOTE:

___lds __  ___lh  ___  ___pm __  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
awarding him the Purple Heart, the Good Conduct Medal, the Republic of
Vietnam Gallantry Cross with Palm Unit Citation, and three bronze service
stars to be affixed to his Vietnam Service Medal.




                                  _____Linda D. Simmons ___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040006937                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/07/26                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  61   |107.0015/ph                             |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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