RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           30 June 2005
      DOCKET NUMBER:  AR20040008533


      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:

|     |Ms. Melinda M. Darby              |     |Chairperson          |
|     |Mr. Thomas E. O’Shaughessy        |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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, he never received the PH he was
entitled to based on being wounded in action in the Republic of Vietnam
(RVN) in April 1968.

3.  The applicant refers to a Department of Veterans Affairs (VA)
disability file number in support of his application.  However, he provides
no documentary evidence from this VA file, or from any other source in
support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 18 April 1969.  The application submitted in this case is
dated
30 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 19 April 1967.  He was trained in,
awarded and served in military occupational specialty (MOS) 11B
(Infantryman).  The highest grade he attained while serving on active duty
was sergeant (SGT).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows that
he served in the RVN from 6 November 1967 through 1 November 1968.  During
his RVN tour, he was assigned to Company D, 2nd Battalion, 502nd Infantry,
performing duties in MOS 11B as an automatic rifleman and squad leader.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 is blank and contains no
entry indicating he was ever wounded/injured 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.  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 18 April 1969, the applicant was honorably separated after
completing a total of 2 years of 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, RVN Campaign Medal, Vietnam
Service Medal, Army Commendation Medal, Parachutist Badge, Combat
Infantryman Badge, and Army Good Conduct Medal.  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.  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 while serving in the RVN.

11.  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 (Company
D, 2nd Battalion,
502nd Infantry) earned the RVN Gallantry Cross with Palm Unit Citation and
RVN Civil Actions Honor Medal First Class Unit Citation.  It also shows the
applicant was credited with participating in the Vietnam Counteroffensive
Phase III, TET Counteroffensive, Vietnam Counteroffensive Phase IV, and
Vietnam Counteroffensive Phase V campaigns.
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/injury.  Item 40 of the
applicant’s DA Form 20 is blank, and his name is not included on the
Vietnam Casualty Roster, the official DA list of RVN battle casualties.
The absence of entries on these official records indicates the applicant
was never wounded/injured as a result of combat action.

3.  Further, the PH is not included in the list of awards contained on the
applicant’s DD Form 214, which he authenticated with his signature.  His
signature on this document was, in effect, his verification that the
information it contained, to include the list of awards, was correct at the
time the DD Form 214 was prepared and issued.  Finally, there are no
medical treatment records on file that indicate he 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.

4.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH on 18 April 1969.  Thus, the time for
him to file a request for correction of any error or injustice from this
Board expired on
17 April 1972.  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 does show that based on his RVN service and campaign
participation, the applicant is entitled to the RVN Gallantry Cross with
Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit
Citation, and 4 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.  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

__MMD__  ___TEO _  ___YM__  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
4 bronze service stars with his Vietnam Service Medal; and by providing him
a corrected separation document that includes these awards.




            ____Melinda M. Darby______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040008533                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/06/30                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1969/04/18                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENYwAdmNote                            |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  61   |107.0015                                |
|2.  46                  |107.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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