RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          21 June 2005
      DOCKET NUMBER:  AR20040007952


      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. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Ms. Laverne M. Douglas            |     |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 the PH should be listed in his
records and included in the list of awards contained on his separation
document
(DD Form 214).

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 17 December 1971.  The application submitted in this case
is
dated 19 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’s record shows that he was inducted into the Army of the
United States and entered active duty on 14 April 1970.  He was trained in,
awarded and served in military occupational specialty (MOS) 16F (Artillery
Crewman).  The highest grade 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 17 September 1970 through 17 September 1971.
During this RVN tour, he was assigned to Battery B, 4th Battalion, 60th
Artillery, performing duties in MOS 16F as a cannoneer.  Item 38 (Record of
Assignments) shows the applicant left the RVN and was assigned to the
Medical Holding Company, William Beaumont General Hospital (WBGH), El Paso,
Texas, on
28 September 1971, and placed in a patient status.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 is blank and contains no
entry indicating the applicant was wounded in action.  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.  The Health Records included with the MPRJ do
contain a Clinical Record Cover Sheet (SG Form 84), dated 1 October 1971,
which indicates the applicant was released from a three day hospitalization
and returned to duty, after being treated for the improper use of heroin.
An attached clinical record (SF 502) shows he was admitted to the WBGH
Psychiatric Service as an air evacuee from the RVN on 28 September 1971.
He was diagnosed with the improper use of heroin, and was released on 1
October 1971.  There are no medical treatment records on file indicating
the applicant ever received a wound/injury as a direct result of, or that
was caused by enemy action.

7.  On 17 December 1971, the applicant was honorably separated after
completing a total of 1 year, 7 months and 24 days of creditable active
military service.  The DD Form 214 he was issued shows 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 with Valor (“V”) Device, RVN Campaign Medal, Army Good Conduct Medal
and Sharpshooter Qualification Badge with Rifle Bar.  The applicant
authenticated this document with his signature in Item 32 (Signature of
Person Being Transferred or Discharged).

8.  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.

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 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.

10.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit
Register) establishes the eligibility of individual members for unit
citation badges awarded during the Vietnam Conflict.  It confirms that
during his tenure of assignment in the RVN, the applicant’s unit (Battery
B, 4th Battalion,
60th Artillery) earned the 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 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.

2.  The evidence of record in this case contains no indication the
applicant ever received a combat related wound of injury.  The medical
treatment records on file confirm he was medically evacuated from the RVN
and hospitalized for the improper use of heroin.  There are no medical
treatment records indicating that the applicant ever received a
wound/injury as a direct result of, or that was caused by enemy action, or
that he was ever treated for a combat related wound/injury.  Therefore, 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 related to award of the PH on 17 December 1971.  Thus, the time
for him to file a request for correction of any error or injustice from
this Board expired on 16 December 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.  The evidence does show that based on his RVN service, the applicant is
entitled to the RVN Gallantry Cross with Palm Unit Citation.  The omission
of this awardfrom his record 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
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

___MKP_  __PHM__  ___LMD _  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; and by providing him a corrected separation
document that includes this award.




            ____Margaret K. Patterson___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040007952                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/06/DD                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1971/12/17                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Early Release -Conv of Govt             |
|BOARD DECISION          |DENYwith Admin Note                     |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  61   |107.0015                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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