RECORD OF PROCEEDINGS


      IN THE CASE OF:

      BOARD DATE:           21 July 2005
      DOCKET NUMBER:  AR20040010173


      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               |
|     |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, award of the Purple Heart (PH).

2.  The applicant states, in effect, that his medical records show an
injury to his right leg, when in fact it was his left leg.  He further
states the record should show he received the PH for injuries.

3.  The applicant provides copies of his separation documents (DD Forms
214) and a rating decision from the Department of Veterans Affairs (VA) in
support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 10 November 1972.  The application submitted in this case
is dated 8 November 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 20 July 1966.  He was trained in, awarded
military and served in military occupational specialty (MOS) 11B
(Infantryman).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows that
he served in the Republic of Vietnam (RVN) from 18 July 1967 through
26 November 1967.  During his RVN tour, he was assigned to Company C,
3rd Battalion, 8th Infantry Regiment, performing duties in MOS 11B as a
rifleman.

5.  On 11 November 1968, the applicant was honorably discharged for the
purpose of immediate reenlistment.  The separation document he was issued
confirms he completed 2 years, 3 months and 22 days of active military
service during the period, and that he earned the National Defense Service
Medal (NDSM), Vietnam Service Medal (VSM), Combat Infantryman Badge (CIB),
and 1 Overseas Bar.  The PH was no 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.  On 12 November 1968, he reenlisted for four
years.

6.  Item 40 (Wounds) of the applicant’s DA Form 20 is blank and contains no
entry indicating the applicant received a wound/injury as a direct result
of, or that was caused by enemy action.  Item 41 (Awards and Decorations)
does not include the PH in the list of awards entered.  The applicant last
audited the
DA Form 20 on 8 March 1971.

7.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no
medical treatment records prepared during his RVN tour.  It also has no
medical record documents related to a leg injury to either the right or
left leg.

8.  On 10 November 1972, the applicant was honorably separated after
completing a total of 6 years, 3 months and 21 days of active military
service.  The DD Form 214 he was issued at this time confirms he held the
rank of sergeant (SGT) and that in addition to the NDSM, VSM and CIB he
earned during his first enlistment, he earned the Marksman Qualification
Badge with Rifle Bar.  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.

9.  The VA rating decision document provided by the applicant indicates he
received service connection for a Post Traumatic Stress Disorder (PTSD),
Malaria and residuals of a shell fragment wound to his right thumb and
right leg.  The document gives no indication that military medical records
were used in the evaluation, or if there was any military medical records
indicating the shell fragment wound was received as a direct result of, or
was caused by enemy action.

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.

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.

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 Vietnam Counteroffensive Phase III
campaign.

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 unit (3rd
Battalion, 8th Infantry Regiment) earned the Presidential Unit Citation,
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 based on being wounded
in action in the RVN as indicated on the VA rating decision he provided 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.  The VA rating decision document provided by the applicant fails to
confirm the applicant’s shrapnel wound was received as a direct result of,
or was caused by enemy action.  Absent any military medical treatment
records that show he was treated for a combat related wound/injury, this
document alone is not sufficient to support award of the PH in this case.

3.  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 and there are no orders or other documents on file in his
MPRJ showing he was ever recommended for, or awarded the PH by proper
authority.  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
RVN tour.  In effect, this audit was his verification that the information
contained in the record, to include the Item 40 and Item 41 entries, was
correct at that time.

4.  The PH is also not included in the list of awards contained on either
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 was 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 his shrapnel wounds were combat related, the regulatory
burden of proof necessary to support award of the PH has not been satisfied
in this case.

5.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH now under consideration on 10 November
1972.  Therefore, the time for him to file a request for correction of any
error or injustice related to this matter expired on 9 November 1975.
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.

6.  The record confirms that based on his RVN service and campaign
participation, the applicant is entitled to the Presidential Unit Citation,
RVN Gallantry Cross with Palm Unit Citation, RVN Civil Action Honor Medal
First Class Unit Citation 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 Presidential Unit Citation,
Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of
Vietnam Civil Actions Honor Medal First Class Unit Citation 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                 |AR20040010173                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/07/21                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1972/11/10                              |
|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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