RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           21 July 2005
      DOCKET NUMBER:  AR20040009812


      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 Infante                  |     |Chairperson          |
|     |Mr. Robert J. Osborn              |     |Member               |
|     |Mr. 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, award of the Purple Heart (PH).

2.  The applicant states, in effect, while serving in the Republic of
Vietnam (RVN) he lost hearing in both ears, which has resulted in a 70
percent disability rating from the Department of Veterans Affairs (VA).  He
also claims he has a VA disability rating of 100 percent for a Post
Traumatic Stress Disorder (PTSD).  As a result, he believes he is entitled
to a PH.

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 20 October 1973.  The application submitted in this case
is dated
20 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 record shows that he initially enlisted in the Regular
Army and entered active duty on 15 September 1967.  He was initially
trained in and awarded military occupational specialty (MOS) 71B (Clerk-
Typist).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows that
he served in the RVN from 1 May 1968 through 25 April 1969.  During his RVN
tour, he was assigned to the 219th Medical Detachment performing duties in
MOS 71B as a clerk typist.
5.  On 18 January 1970, the applicant was honorably discharged for the
purpose of immediate reenlistment.  The separation document he was issued
confirms he completed 2 years, 4 months and 4 days of active military
service during the period and that he earned the National Defense Service
Medal (NDSM), Vietnam Service Medal (VSM) and RVN Campaign Medal.  The PH
was not included in the list of awards on the DD Form 214.  The applicant
authenticated this document with his signature on the date of his
separation.

6.  On 19 January 1970, the applicant reenlisted for four years.  His DA
Form 20 confirms he was awarded the MOS 64B (Heavy Vehicle Driver) on 14
January 1970.  It also shows that he served a second tour of duty in the
RVN from
6 November 1970 through 1 November 1971.  During this RVN tour, he was
assigned to 360th Transportation Company performing duties in MOS 64B as a
heavy truck driver.

7.   Item 40 (Wounds) of the applicant’s DA Form 20 is blank and contains
no entry indicating he was ever wounded in action.  The PH is not included
in the list of awards contained in Item 41 (Awards and Decorations), and
Item 48 (Date of Audit) indicates the applicant last audited this record on
15 March 1972.

8.  The applicant’s Military Personnel Records Jacket (MPRJ) contains a
copy of a Report of Medical Examination (SF 88), dated 1 August 1973.  This
form documents the physical examination taken by the applicant during his
final separation processing.  The clinical evaluation portion of the
examination indicates the applicant received normal evaluations in his ears
and his psychiatric examinations.  The summary of defects contains no
reference to the applicant being wounded in action, or to his suffering
from hearing loss or from a psychiatric condition.  The SF 88 also confirms
the examining physician gave the applicant a 111111 Physical Profile and a
Physical Category of A, indicating no problems in any areas.

9.  On 20 October 1973, the applicant was honorably separated after
completing a total of 6 years, 1 month and 6 days of active military
service.  The DD Form 214 he was issued at this time confirms he held the
rank of specialist four (SP4) and that he earned the following awards:
NDSM, VSM, RVN Campaign Medal, Army Good Conduct Medal (AGCM), 2nd Award
and 2 Overseas Bars.  The PH is not included in the list of awards
contained on the separation document and the applicant authenticated this
document with his signature on the date of his separation.

10.  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.

11.  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.  This
list includes disease not directly caused by enemy agents and post
traumatic stress disorders.

12.  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.  A silver service star is used
in lieu of 5 bronze service stars to denote participation in five
campaigns.

13.  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 following six campaigns:  Vietnam
Counteroffensive Phase IV, Vietnam Counteroffensive Phase V, Vietnam
Counteroffensive Phase VI, TET 69 Counteroffensive, Vietnam
Counteroffensive Phase VII and Consolidation I.

14.  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 (219
Medical Detachment & 360th Transportation Company) earned the Meritorious
Unit Commendation and RVN Gallantry Cross with Palm Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH based on VA related
hearing and PTSD disabilities 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.  The existence of service connected
disabilities does not carry an automatic entitlement to the PH.
2.  The evidence of record provides no indication that the applicant was
ever wounded/injured in action, or that he was treated for a combat related
wound. Item 40 his DA Form 20 contains no entry indicating he was ever
wounded in action.   There are no orders or other documents on file in his
MPRJ that indicate he was ever recommended for, or awarded the PH by proper
authority.  Further, Item 41 of his DA Form 20 does not include the PH in
the list of awards he earned while serving on active duty.  The applicant
last audited his DA Form 20 on 15 March 1972, subsequent to his completing
his last RVN tour.  In effect, this audit was his verification that the
information contained on the record, to include the Item 40 and Item 41
entries, was correct at that time.

3.  Further, the PH is not included in the list of awards contained on
either of his DD Forms 214, and he authenticated both of these separation
documents with his signature on the respective dates of separation.  In
effect, his signature on these forms were his verification that the
information contained on the separation documents, to include the list of
awards, was correct at the time they were prepared and issued.  Finally,
his name is not included on the Vietnam Casualty Roster, the official DA
list of RVN battle casualties.  As a result, absent any corroborating
evidence of record to confirm he ever received a wound/injury as a direct
result of, or that was caused by enemy action, 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 20 October
1973.  Therefore, the time for him to file a request for correction of any
error or injustice related to this matter expired on 19 October 1976.
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 Meritorious Unit
Commendation, Republic of Vietnam Gallantry Cross with Palm Unit Citation
and 1 silver service star and 1 bronze service star 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

___JI____  ___RJO_  ___BKK     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 Meritorious Unit Commendation,
Republic of Vietnam Gallantry Cross with Palm Unit Citation, and 1 silver
service star and 1 bronze service star with his Vietnam Service Medal; and
by providing him a corrected separation document that includes these
awards.




            ____John Infante_______
                    CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040009812                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/07/21                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1973/10/20                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY w Adm Note                         |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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