RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           30 June 2005
      DOCKET NUMBER:  AR20040009002


      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, that he was wounded by small arms fire
while serving in the Republic of Vietnam (RVN), but was never issued the
PH.

3.  The applicant provides medical treatment records in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 21 November 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 and
entered active duty on 22 November 1967.  He was trained in, awarded and
served in military occupational specialty (MOS) 11C (Infantry Indirect Fire
Crewman).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows that
he served in the RVN from 8 May 1968 through 22 December 1968.  During his
RVN tour, he was assigned to Company C, 2nd Battalion, 327th Infantry,
performing duties in MOS 11C as a mortar crewman.  Item 40 (Wounds)
contains an entry indicating that the applicant received a gun shot wound
to the right elbow on 18 December 1968.  The PH is not included in the list
of awards contained in Item 41 (Awards and Decorations).  Item 48 (Date of
Audit) indicates the applicant last audited this record on 1 May 1969.

5.  The applicant’s Military Personnel Records Jacket (MPRJ) contains a
Clinical Record Cover Sheet (DA Form 8-275-3), dated 18 December 1968.
This form indicates the applicant received a gun shot wound to forearm when
he was accidentally shot by another Soldier.  There is no indication that
the applicant and the other Soldier were engaged in combat action with
enemy forces at the time of the shooting.
6.  On 21 November 1969, the applicant was honorably released from active
duty after completing 2 years of active military service.  The DD Form 214
he was issued at that time shows the he earned the following awards during
his tenure on active duty:  National Defense Service Medal, Vietnam Service
Medal (VSM) with 1 bronze service star, RVN Campaign Medal with 1960 Device
and Combat Infantryman Badge.  The PH is not included in this list of
authorized awards and the applicant authenticated this document with his
signature in Item 32 (Signature of Person Being Transferred or Discharged).


7.  The medical treatment records provided by the applicant are the same as
those on file in the applicant’s MPRJ. These treatment records indicate the
applicant received the gun shot wound to his arm as a result of an
accidental shooting by another Soldier.

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 found on this 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 award of the PH.  It states, in pertinent
part, that in order to award a PH there must be evidence that the wound for
which the award is being made was received as a result of enemy action, the
wound must have required medical treatment and the medical treatment must
have been made a matter of official record.  The regulation provides
examples of situations that clearly do not support award of the PH.
Included in this list is accidental wounding not related to or caused by
enemy action.

10.  Paragraph 2-13 of the awards regulation contains guidance on award of
the VSM and 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.  Table B-1 of the awards
regulation contains a list of campaigns and it shows that during the
applicant’s tenure of assignment in the RVN, he was credited with
participating in the Vietnam Counteroffensive Phase IV, Vietnam
Counteroffensive Phase V and Vietnam Counteroffensive Phase VI campaigns.

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 units (2nd
Battalion, 327th Infantry) earned the earned the RVN Gallantry Cross with
Palm Unit Citation and
RVN Civil Actions Honor Medal First Class Unit Citation.
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, that the wound required treatment by a medical officer, and that
the record of medical treatment was made a matter of official record.

2.  Although there are indications in the record that the applicant
received a
gun shot wound to the arm on 18 December 1968, while serving in the RVN,
the medical treatment records on file confirm the wounding was the result
of an accidental shooting by another Soldier.  Notwithstanding the entry in
Item 40 his DA Form 20, there are no orders or other documents on file in
his MPRJ that indicate the applicant was ever recommended for, or awarded
the PH by proper authority.

3.  Further, Item 41 of the applicant’s DA Form 20 does not include the PH
in the list of awards he earned while serving on active duty, and the PH is
not included in the list of authorized awards contained on his DD Form 214.
 He last audited his DA Form 20 on 1 May 1969 and authenticated his DD Form
214 on
21 November 1969.  In effect, his audit of his DA Form 20 and his
authentication of his DD Form 214 verify that the information contained in
the record and separation document, to include the lists of authorized
awards, was correct at the time he reviewed them.  As a result, absent any
corroborating evidence of record to confirm his wound was combat related,
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 now under consideration on 21 November
1969.  Therefore, the time for him to file a request for correction of any
error or injustice expired on 20 November 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 record confirms that based on his RVN service and campaign
participation, the applicant is entitled to the Republic of Vietnam
Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal
First Class Unit Citation and 3 bronze service stars with his VSM.  The
omission of these awards is an administrative matter that does not require
Board action.  Thus, correction of
his records will be made by the Case Management Support Division (CMSD),
St. Louis, Missouri, 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.  Therefore, the Board requests that the
CMSD-St. Louis 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.




            ____Melinda M. Darby____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040009002                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/06/30                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1969/11/21                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY with Adm Note                      |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  61   |107.0015                                |
|2.  46                  |107.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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