RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           17 May 2005
      DOCKET NUMBER:  AR20040007022


      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. John N. Slone                 |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Carmen Duncan                 |     |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 never awarded the PH for
being wounded while serving in the Republic of Vietnam (RVN).  He claims
that on
30 September 1970, while serving in the RVN, he received a gunshot wound to
his hand.  He claims that he was medically evacuated that same day.

3.  The applicant provides a copy of his separation document (DD Form 214)
and Department of Veterans Affairs (VA) benefits document in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 23 June 1971.  The application submitted in this case is
dated
6 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 24 June 1969.  He was trained in, awarded and served
in military occupational specialty (MOS) 76Y (Armorer/Unit Supply
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 27 November 1969 through 4 October 1970.  During
this RVN tour, he was assigned to Company A, 1st Battalion, 5th Infantry,
performing duties in MOS 76Y as the unit Armorer.

5.  The DA Form 20 also shows that the applicant was medically evacuated
from the RVN and was in a patient status through 5 January 1971.  Item 40
(Wounds) is blank and contains no entry indicating the applicant was
wounded in action, and Item 41 (Awards and Decorations) does not include
the PH among the earned awards listed.
6.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no
indication that the applicant was ever wounded in action, or recommended
for or awarded the PH.  It does contain a Physical Profile Record (DA Form
3349) that indicates he suffered a gunshot wound to the left hand, and as a
result was assigned a temporary 3 profile; however, it contains no facts
and circumstances related to how the gunshot wound was incurred.  The MPRJ
also contains a Report of Medical Examination (SF88) documenting the
applicant’s separation physical examination.  It contains no reference to
the applicant being wounded in action.

7.  On 23 June 1971, the applicant was honorably separated at the
expiration of his term of service.  The DD Form 214 he was issued confirms
he completed
2 years of active military service.  This document also shows that he
earned the following awards during his active duty tenure:  National
Defense Service Medal, Vietnam Service Medal with 2 bronze service stars,
Army Commendation Medal, Marksman Qualification Badge with Rifle Bar and 2
Overseas Bars.  The applicant authenticated this document with his
signature in Item 32 (Signature of Person Being Transferred or Discharged).


8.  The applicant provides a VA benefits document that confirms he was
awarded a 10 percent disability rating for the service connected gun shot
wound to his hand.  This document provides no facts and circumstances
surrounding under what conditions the wound was incurred.

9.  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.

10.  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. A wound is defined 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.

11.  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.
12.  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 (1st Battalion, 5th Infantry)
earned the RVN Gallantry Cross with Palm Unit Citation and RVN Civil
Actions Honor Medal First Class Unit Citation.  It also shows that based on
his RVN assignment tenure, he was credited with participating in the
Vietnam Winter-Spring 1970, Sanctuary Counteroffensive and Vietnam
Counteroffensive Phase VII campaigns.

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.  It is clear he received and was treated for a gunshot wound to his
hand.  However, there are no medical treatment record, orders, or other
documents indicating he received this wound as a direct result of, or that
it was caused by enemy action.  The fact that medical treatment records
documenting treatment for the wound exist, but there is no PH
recommendation from the chain of command, or from responsible medical
officials, appears to support a conclusion that the wound was accidental.

2.  It appears that the officials responsible for recommending and/or
awarding the PH did not believe it was authorized for the applicant’s
gunshot wound to the hand.  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.  Absent any
evidence of record to confirm his wound 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.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 June 1971.  Therefore, the time for
him file a request for correction of any error or injustice expired on 22
June 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.

4.  Records confirm the applicant is entitled to the RVN Gallantry Cross
with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit
Citation and
3 bronze service stars with his Vietnam Service Medal.  The omission of
these awards from his record is an administrative matter that does not
require Board action.
5.  The Case Management Support Division (CMSD), St. Louis, Missouri will
be requested to make the necessary administrative 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

___JNS _  ___CD_  _  ___RJLD  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.  As a result, the CMSD-St. Louis is
requested to administratively correct the records of the individual
concerned to show his entitlement to the Republic of Vietnam Gallantry
Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor
Medal First Class Unit Citation and
3 bronze service stars with his Vietnam Service Medal; and by providing him
a corrected separation document that includes these awards.




            ____John N. Slone______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040007022                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/05/17                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1971/06/23                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY with Adm Note                      |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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