RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 July 2005
      DOCKET NUMBER:  AR20040008381


      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. David S. Griffin              |     |Analyst              |
|     |                                  |     |                     |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Robert J. Osborn              |     |Member               |
|     |Ms. Brenda K. Koch                |     |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
for injuries received as a direct result of armed conflicts and/or in the
performance of duties under conditions simulating war and/or by an
instrumentality of war.

2.  The applicant states, in effect, that:

      a.  he suffered a broken right ankle caused by either artillery or
mortar fire on/or about 1 July 1951.  He states he was medically evacuated
(MEDEVAC) to the 279th Army Hospital in Osaka, Japan for treatment;

      b.  he suffered a broken fibula, left leg, while performing maneuvers
in preparation for combat operations in Laos or Vietnam, which required
surgery to repair.  He spent eight weeks in Tripler Army Hospital and was
released to duty;

      c.  in 1971, he suffered a broken right knee in Vietnam when he was
attacked by and "stroked a blow to my right knee by a hostile member of the
unit" thus causing his knee to break.  He was MEDEVACed to Japan and
subsequently to Walson Army Hospital at Fort Dix, New Jersey, where he was
subsequently medically retired;

      d.  on 10 May 1972, he was retired from the Army with a permanent
disability rating of 50 percent.  Thirty years later the Department of
Veterans Affairs (DVA) combined all of his disabilities for a combined
rating of 70 percent; and

      e.  he feels his leg injuries were combat related and that the
traumatic arthritis from which he now suffers are the direct result of
those injuries.

3.  The applicant provides:

      a.  an X-ray from Tripler U.S. Army Hospital, taken on 7 August 1962,
that shows a lateral view of a screw in the ankle, most likely the fibula:
and

      b.  a copy of his letter, dated 24 September 2004, to the DVA
concerning the DVA's coding of his bilateral knee condition and traumatic
arthritis as non-combat related.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
9 May 1972, the date he was released from active duty.  The application
submitted in this case is dated 24 September 2004 and was received on
13 October 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 military records show that he was initially inducted on

10 November 1950.  He served continuously to 9 May 1972 when he was
released from active duty and placed on the Retired List with a 50 percent
disability.  He had served 21 years and 6 months of active service
characterized as honorable.  The highest grade the applicant held was first
sergeant/pay grade E-8.

4.  The records show that the applicant was assigned in Korea during the
period from 22 March 1951 until 11 June 1952 and during the period from 20
February 1956 until 22 June 1957.

5.  The applicant's medical records from the 279th Army Hospital for the
period from 28 July 1951 until 24 November 1951 show treatment for a broken
right ankle.  The records state that the applicant broke his right ankle
when he stepped in a hole while carrying sand on 26 July 1951 in Korea.
The Receiving Ward Work Sheet, dated 28 July 1951, indicated that the
applicant is not eligible for award of the Purple Heart.

6.  The applicant's name does not appear on the Korean War Casualty Roster.

7.  The records show that the applicant was assigned in Vietnam to B
Company, 2nd Battalion, 8th Cavalry during the period from 12 June 1967
until 6 June 1968.

8.  The records show that the applicant was assigned in Vietnam to B
Company, 1st Battalion, 502nd Infantry during the period from 15 March 1970
until
16 September 1970 and to the 101st Administrative Company, 101st Airborne
Division during the period from 17 September 1970 until 11 February 1971.

9.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and
Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214
(Armed Forces of the United States Report of Transfer or Discharge) with an
effective date of 9 May 1972 does not show award of the Purple Heart.

10.  The applicant's records do not contain any orders for award of the
Purple Heart.

11.  The applicant's name is not listed on the Vietnam Casualty Roster.

12.  The applicant's medical treatment records for the period from 1960 to
9 May 1972, the date of release from active duty, were not available for
the Board to review.

13.  The applicant was referred to a Medical Evaluation Board (MEB) and on
22 December 1971 that Board found that the applicant was medically unfit
for further military service due to instability of the left knee; traumatic
arthritis, right knee; instability of right knee; and traumatic arthritis,
left ankle.  The MEB recommended the applicant be referred to a Physical
Evaluation Board (PEB).

14.  On 19 January 1972, a PEB found the applicant unfit for duty due to a
bilateral knee impairment, right, severe; left, slight; and traumatic
arthritis of the left ankle.  The PEB recommended the applicant be
permanently retired with a combined rating of 50%.  The PEB also found that
the applicant's retirement was not based on disability resulting from
injury or disease received in the line of duty as a direct result of armed
conflict or caused by an instrumentality of war and incurred in line of
duty during a period of war as defined by law.

15.  On 2 February 1972, the applicant concurred with the findings of the
PEB.

16.  Review of the applicant's records revealed entitlement to awards,
which are not shown on his DD Form 214.

17.  The Secretary of Defense approved the implementing instructions and
criteria for the Korea Defense Service Medal on 3 February 2004.  The Korea
Defense Service Medal is authorized to members of the Armed Forces who have
served on active duty in support of the defense of the Republic of Korea
from
28 July 1954 to a date to be determined.
18.  Based on his dates of service in Vietnam, Table B-1 of Army Regulation

600-8-22 (Military Awards) shows he served in the Vietnam Counteroffensive,
Phase III Campaign (1 June 1967 - 29 January 1968); the Tet
Counteroffensive Campaign (30 January 1968 - 1 April 1968); the Vietnam
Counteroffensive, Phase IV Campaign (2 April 1968 - 30 June 1968); the
Vietnam Winter - Spring 1970 Campaign (1 November 1969 - 30 April 1970);
the DA Sanctuary Counteroffensive Campaign (1 May 1970 - 30 June 1970); and
the Vietnam Counteroffensive Phase VII Campaign (1 July 1970 - 30 June
1971).

19.  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 that, at the time of the
applicant’s assignment to B Company, 2nd Battalion, 8th Cavalry, the unit
received the Republic of Vietnam Gallantry Cross with Palm Unit Citation
for the period from 9 August 1965 to 19 May 1969, based on Department of
the Army General Order
Number 59, dated 1960.

20.  Department of the Army Pamphlet 672-3 also shows that, at the time of
the applicant’s assignment to the B Company, 1st Battalion, 502nd Infantry,
the unit received the Republic of Vietnam Civil Actions Medal Unit Citation
for the period from 18 Mar 1968 to 2 May 1970, based on Department of the
Army General Order Number 48, dated 1971.

21.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple
Heart is awarded for a wound sustained as a result of hostile action.
Hostile action is defined as:

      a.  any action against an enemy of the United States;

      b.  any action with an opposing armed force of a foreign country;

      c.  serving with friendly foreign forces engaged in an armed conflict
against an opposing armed force in which the U.S. is not a belligerent
party;

      d.  a result of an act of any such enemy of opposing armed forces;

      e.  a result of an act of any hostile foreign force;

      f.  a result of an international terrorist attack; or

      e.  a result of military operations while serving outside the U.S. as
part of a peacekeeping force.
Substantiating evidence must be provided to verify that the wound was the
result of hostile action, the wound must have required treatment, and the
medical treatment must have been made a matter of official record.

22.  Army Regulation 600-8-22, in pertinent part, authorizes award of a
bronze service star, based on qualifying service, for each campaign listed
in Appendix B of this regulation.  A silver star is worn instead of five
bronze service stars.  The regulations state that authorized bronze service
stars will be worn on the appropriate campaign and service medal, which in
this case is the Vietnam Service Medal.

23.  As a matter of information, on the occasion of the 50th anniversary of
the Korean War, the Government of the Republic of Korea issued the Korean
War Service Medal to pay tribute to eligible Korean War veterans for their
historic endeavors to preserve the freedom of the Republic of Korea and the
free world.  On 20 August 1999, the Department of Defense approved
acceptance and wear of this foreign service award to eligible US veterans
of the Korean War, or their surviving next of kin. The medal is provided at
no cost to veterans.

24.  The Department of Defense assigned responsibility to the Department of
the Air Force for distribution of the Korean War Service Medal to eligible
veterans or their surviving next of kin.  To apply, veterans must submit a
copy of their discharge paper (DD Form 214) to the Awards and Decorations
Section, Headquarters, Air Force Personnel Center, 550 C Street West, Suite
12, Randolph Air Force Base, Texas 78150-4714.  A sample request form has
been provided to the applicant.  Once the Korean War Service Medal has been
authorized by the Department of the Air Force, the applicant may apply to
the Army Board for Correction of Military Records to add this foreign award
to his
DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that  he should be awarded the Purple Heart for
his  broken right ankle,  broken fibula, left leg, and for his broken right
knee.  He contends that he received these injuries as a direct result of
armed conflicts and/or in the performance of duties under conditions
simulating war and/or by an instrumentality of war.

2.  The regulation for award of the Purple Heart is specific in that an
injury received must be the result of an enemy of the U.S., an opposing
armed force of a foreign country, or an international terrorist.

3.  The medical records show the applicant stepped in a hole and broke his
ankle in 1951.

4.  An attack by a "hostile member" of the applicant's unit does not
constitute a hostile action as defined in Army Regulation 600-8-22.

5.  The PEB determined that the injuries to the applicant's knees and left
ankle were not related to combat and the applicant concurred with those
findings.

6.  Based on all of the foregoing, and in the absence  of  military  records
which show that the applicant was wounded or treated  for  wounds  resulting
from hostile action, there is  insufficient  evidence  upon  which  to  base
award of the Purple Heart in this case.

7.  The applicant served a tour on active duty in Korea during the period
20 February 1956 until 22 June 1957.  Therefore, he is entitled to the
Korea Defense Service Medal.

8.  The applicant's military personnel records show he participated in six
campaigns during his service in Vietnam.  Therefore, he is entitled to one
silver service star and one bronze service star to be worn on his Vietnam
Service Medal.

9.  The applicant was serving with B Company, 2nd Battalion, 8th Cavalry
during the period the unit was cited for award of Republic of Vietnam
Gallantry Cross with Palm Unit Citation.  Therefore the applicant is
entitled to Republic of Vietnam Gallantry Cross with Palm Unit Citation.

10.  The applicant was serving with B Company, 1st Battalion, 502nd
Infantry during the period the unit was cited for award of Republic of
Vietnam Civil Actions Medal Unit Citation.  Therefore the applicant is
entitled to Republic of Vietnam Civil Actions Medal Unit Citation.

11.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 May 1972, the date he released from
active duty.  Therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 8 May 1975.  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.

12.  Evidence shows that the applicant’s records contain administrative
error which does not require action by the Board.  Therefore,
administrative correction of the applicant’s records will be accomplished
by the Case Management Support Division (CMSD), St. Louis, Missouri, as
outlined by the Board in paragraph 2 of the BOARD
DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___bkk __  ____ji___  ____rjo__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  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 award of:

      a.  the Korea Defense Service Medal;

      b.  one silver service star and one bronze service star to be worn on
his Vietnam Service Medal;

      c.  the Republic of Vietnam Gallantry Cross with Palm Unit Citation;
and

      d.  the Republic of Vietnam Civil Actions Medal Unit Citation.





                                  _________John Infante_____________
                                            CHAIRPERSON
                            INDEX

|CASE ID                 |AR20040008381                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050721                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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