RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 June 2005
      DOCKET NUMBER:  AR20040010249


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Patrick H. Mcgann Jr.         |     |Member               |
|     |Ms. Laverne M. Douglas            |     |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 correction of his records to show award of the
Purple Heart.

2.  The applicant states, in effect, that he received an injury to his
lower back while serving in Vietnam.  He further states that his injury
occurred while he was serving as a crew chief on an observation helicopter.
 He continues that a mine explosion went off that caused damage to his
aircraft and it was during the explosion that he injured his back.  The
applicant states that he was treated at the 939th Evacuation Hospital from
January 1971 through February 1971.

3.  The applicant provides four 93rd Evacuation Hospital medical treatment
documents and a Department of Veterans Affairs Rating Decision, dated 6
April 1972.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 20 March 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 enlisted in the Regular Army on 18 September 1969 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 67V (OH-6 Helicopter
Repairman).  He arrived in Vietnam and was assigned to Air Cavalry Troop,
11th Armored Cavalry Regiment on or about 10 April 1970.  He departed
Vietnam on or about 14 March 1971.

4.  The applicant was honorably released from active duty on 20 March 1972
and assigned to the U.S. Army Reserve Control Group.



5.  A DD Form 214 (Armed Forces of the United States Report of Transfer or
Discharge) shows he was awarded the National Defense Service Medal, the
Vietnam Service Medal with three bronze service stars, the Republic of
Vietnam Campaign Medal, the Army Commendation Medal with "V" device (First
Oak Leaf Cluster), the Air Medal, the Aircraft Crewman Badge, and the
Expert Marksmanship Qualification Badge (Rifle).

6.  There are no general orders in the applicant’s service personnel
records that show he was awarded the Purple Heart.  There also is no
evidence in his service personnel records that shows that he was wounded or
treated for wounds as a result of hostile action in Vietnam.  The
applicant's name is not listed on the Vietnam Casualty Roster.

7.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification
Record) does not show the applicant was wounded, and item 41 (Awards and
Decorations) does not show award of the Purple Heart.

8.  A Standard Form 88 (Report of Medical Examination), dated 17 March
1972, shows that the applicant was being separated.  Item 38 (Spine, other
musculoskeletal) indicates no abnormalities.

9.  The applicant submitted four 93rd Evacuation Hospital medical treatment
documents.  The medical treatment documents showed that he was examined and
treated for lower back spasms from the period 14 January 1971 through
23 February 1971.  He was given a two week temporary profile for his injury
and returned to regular duty.  There is no mention in the medical treatment
documents that showed the applicant's injury was caused by a hostile force.


10.  The applicant submitted a Department of Veterans Affairs Rating
Decision, dated 6 April 1972.  The document showed that the applicant made
a service connected back injury claim on 23 March 1972.  Item 20
(Narrative) showed "Data recorded for clinical purposes on enlistment
examination notes back injury in January 1969 with no residuals.  Veteran
sustained a back injury from mine explosion on 14 January 1971.  X-rays
were negative and back had full range of motion.  Muscle spasm was noted
and the impression was low back pain due to muscle strain.  Treatments
continued through January and February of 1971 but no residuals were shown
on separation."

11.  There is no evidence the applicant received the first award of the
Army Good Conduct Medal.  His records do not contain any adverse
information and his DA Form 20 (Enlisted Qualification Record) shows his
conduct and efficiency ratings as "excellent" throughout his period of
service.
12.  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 the Air Cavalry Troop, 11th Armored Cavalry
Regiment it was awarded the Republic of Vietnam Gallantry Cross with Palm
Unit Citation for the period 18 September 1969 through 20 March 1971 by
Department of the Army General Orders Number 42, dated 1972.

13.  Army Regulation 672-5-1 (Military Awards), in effect at the time,
provided policy and criteria concerning individual military decorations.
It stated that the Army Good Conduct Medal was awarded for each 3 years of
continuous enlisted active Federal military service completed on or after
27 August 1940 and, for the first award only, upon termination of service
on or after 27 June 1950 of less than 3 years but more than 1 year.  At the
time, a Soldier's conduct and efficiency ratings must have been rated as
"excellent" for the entire period of qualifying service.

14.  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.
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.  When
contemplating an award of this decoration, the key issue that commanders
must take into consideration is the degree to which the enemy caused the
injury.  The fact that the proposed recipient was participating in direct
or indirect combat operations is a necessary prerequisite, but is not sole
justification for award.  This regulation also provides that there is no
statute of limitations on request for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  There are no orders in the applicant's service personnel records that
show he was awarded the Purple Heart.  There is no evidence in the
available records and the applicant has not provided evidence that shows
his injury was a result of hostile action.  The applicant's commander at
the time of the incident must have been aware of the aircraft damage as
well the severity of the applicant's injury and medical treatment.
Apparently the commander did not find it appropriate at that time to
recommend applicant for award of the Purple Heart.

2.  In the absence of military records which show the applicant was injured
as a result of hostile action, there is an insufficient basis for award of
the Purple Heart in this case.

3.  It appears the applicant has met the regulatory requirements for award
of the Army Good Conduct Medal for a qualifying period from 18 September
1969 through 20 March 1972.

4.  The applicant was assigned to a unit during a period of time the unit
was awarded the Republic of Vietnam Gallantry Cross with Palm Unit
Citation.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 December 1969.  Therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 15 December 1972.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

_ MKP __  __ PHM  _  __ LMD _  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by:

      a.  awarding him the Army Good Conduct Medal (1st Award) for the
period 18 September 1969 through 20 March 1972; and

      b.  amending his DD Form 214 to show award of the Army Good Conduct
Medal and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.




2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
award of the Purple Heart.




                                  __ Ms. Margaret K. Patterson __
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010249                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |21 June 2005                            |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |PARTIAL GRANT                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |Mr. Schneider                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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