RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        09 AUGUST 2005
      DOCKET NUMBER:  AR20040011295


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Ms. Barbara Ellis                 |     |Chairperson          |
|     |Mr. Kenneth Wright                |     |Member               |
|     |Mr. Patrick McGann                |     |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 that his records be corrected to reflect award
of the Purple Heart.

2.  The applicant states that an entry was never put into his record at the
time of his injury and notes that his injury occurred on 16 February 1969
while he was assigned to a cavalry unit in Vietnam.

3.  The applicant provides extracts from his service medical records, a
copy of his 1969 separation document, and a copy of his application for
“compensation or pension” from the Department of Veterans Affairs.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 31 October 1969.  The application submitted in this case
is dated
6 December 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.  Records available to the Board indicate that the applicant entered
active duty in 1949 and served continuously until his retirement in October
1969 for length of service.

4.  According to his service medical records, he sustained an injury
(derangement, internal) to his right knee in July 1961 during a tour of
duty in Germany.  The injury was not the result of hostile action and was
not recorded as a “BC” (battle casualty).  His service medical records
indicate that he continued to seek periodic medical treatment for his knee
condition.

5.  In October 1968 the applicant was assigned to the 3rd Squadron, 5th
Cavalry, in Vietnam.  His service medical records note that on 16 February
1969 he was seen at his local aid station for his knee problem.  The
medical treatment entry notes that the applicant first began having
problems in 1961, that he was originally treated with physical therapy, and
that approximately 2 weeks earlier he “squatted down and on arising his
knee popped and developed a catch.”  The applicant noted that he “has had
problems since that time and it has become considerably worse over the last
4 days….”

6.  The applicant was subsequently admitted to the 7th Field Hospital and
ultimately evacuated to the United States.  He was returned to duty at Fort
Dix, New Jersey, in August 1969.

7.  The applicant’s name is not among a list of individuals reported as
combat casualties during the Vietnam War and there is no evidence that he
was ever wounded or injured as a result of hostile action.

8.  On 31 October 1969 the applicant was honorably separated and his name
placed on the retired rolls the following day.

9.  The application for compensation or pension to the Department of
Veterans Affairs was submitted in 1998 and does not attribute any of his
medical conditions to hostile actions while in Vietnam.

10.  Army Regulation 600-8-22 (Military Awards) 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 by a medical officer, and the medical treatment must have been
made a matter of official record.

11.  A review of Department of the Army Pamphlet 672-3 (Unit Citation and
Campaign Participation Credit Register) notes the applicant’s unit was
credited with participating in two designated campaigns (Vietnam
Counteroffensive Phases V and VI during the applicant’s period of
assignment.  Two bronze service stars on the Vietnam Service Medal, which
is recorded on his separation document, should reflect his campaign
participation.

12.  Department of the Army Pamphlet 672-3 also provides, in pertinent
part, for award of the Republic of Vietnam Gallantry Cross Unit Citation
with Palm to all individuals who served in Vietnam between 20 July 1965 and
28 March 1973 in a unit which was subordinate to Headquarters, United
States Army Vietnam.  The applicant’s unit was such a unit.  The unit award
was also omitted from his separation document.



DISCUSSION AND CONCLUSIONS:

1.  Although the applicant may have been injured during his period of
military service and received treatment for the injury while in a combat
zone, there is no medical evidence that the applicant was ever wounded or
injured as a result of hostile action.  In the absence of such medical
evidence, there is no basis for an award of the Purple Heart.

2.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 October 1969; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
30 October 1972.  The applicant did not 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.

4.  Evidence shows that the applicant’s records contain administrative
error which does not require action by the Board.  Therefore,
administrative correction of the applicant’s records will be accomplished
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

___BE __  ___KW __  ___PM __  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 award of two bronze service stars on his Vietnam Service
Medal and the Republic of Vietnam Gallantry Cross Unit Citation with Palm.



                                  ______Barbara Ellis_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011295                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050809                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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