RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           11 August 2005
      DOCKET NUMBER:  AR20040011669


      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 N. Slone                 |     |Chairperson          |
|     |Ms. Deborah Jacobs                |     |Member               |
|     |Mr. Michael J. Flynn              |     |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, that his record be corrected by
adding the Purple Heart (PH) and Vietnam Service Medal he earned to his
record; and by showing he had an L-3 physical profile.

2.  The applicant states, in effect, that the items in question were
omitted from his record and separation document (DD Form 214).

3.  The applicant provides a copy of his DD Form 214 in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he enlisted in the Regular Army and
entered active duty on 25 September 1967.  He was trained in, awarded and
served in military occupational specialty (MOS) 63C (General Vehicle
Repairer), and the highest rank he attained while serving on active duty
was specialist five (SP5).

2.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he
served in the Republic of Vietnam (RVN) from 19 April 1968 through 14 April
1969, and that during this RVN tour, he was assigned to the 701st
Maintenance Battalion.

3.  Item 40 (Wounds) of the applicant’s DA Form 20 is blank, indicating he
was never wounded/injured in action while serving on active duty.  Item 41
(Awards and Decorations) lists the following earned awards:  National
Defense Service Medal (NDSM), VSM, Meritorious Unit Commendation (MUC), RVN
Campaign Medal, Army Commendation Medal (ARCOM), Army Good Conduct Medal
(AGCM), and Sharpshooter Qualification Badge with Rifle Bar.  Item 48 (Date
of Audit) shows the applicant last audited his DA Form 20 on 11 December
1969.

4.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no
orders, or other documents indicating he was ever wounded/injured in
action, or treated for a combat related wound/injury by military medical
personnel.  Further, the MPRJ contains no orders or other documents showing
he was ever recommended for, or awarded the PH.

5.  The applicant’s MPRJ contains medical treatment records showing he was
treated for foot problems (pes planus) while on active duty, and that this
condition did result in his receiving an L-3 profile at times.  It also
contains a Report of Medical Examination (SF88), dated 24 September 1970,
which documents the applicant’s separation physical examination.  This
document shows the examining physician assigned the applicant a Physical
Profile of 111111 based on the results of his examination.  It also
indicates the doctor found the applicant suffered from no permanently
disqualifying conditions, and he medically cleared the applicant for
separation.

6.  On 24 September 1970, the applicant was honorably separated after
completing 3 years of active military service.  The DD Form 214 he was
issued confirms he earned the following awards during his active duty
tenure:  NDSM, RVN Campaign Medal, MUC, AGCM, ARCOM, Sharpshooter
Qualification Badge with Rifle Bar (M-14) and Expert Qualification Badge
with Rifle Bar
(M-16).  The applicant authenticated this document with his signature in
Item 32
(Signature of Person Being Transferred or Discharged).

7.  During the processing of this case, a member of the Board staff
reviewed the Department of the Army (DA) Vietnam Casualty Roster.  There
was no entry pertaining to the applicant on this roster.

8.  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.

9.  Paragraph 2-13 of the awards regulation contains guidance on award of
the VSM.  It states, in pertinent part, that it is authorized for service
in the RVN between 3 July 1965 and 28 March 1973, and 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.

10.  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 Vietnam Counteroffensive Phase IV, Vietnam
Counteroffensive Phase V, Vietnam Counteroffensive Phase VI and TET 69
Counteroffensive 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 unit (701st
Maintenance Battalion) earned the MUC, 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.  The evidence of record contains no indication that the applicant ever
received a wound/injury as a direct result of, or that was caused by enemy
action.  Item 40 of his DA Form 20 is blank and contains no entry
indicating he was ever wounded/injured in action.  Item 41 of the DA Form
20 does not include the PH in the list of authorized awards.  The applicant
audited this record on 11 December 1969, which in effect was his
verification that the record entries, to include Item 40 and Item 41, were
correct at that time.

3.  The PH is also not included in the list of awards contained on the
applicant’s DD Form 214, which he authenticated with his signature on the
date of his separation.  This signature, in effect, was his confirmation
that the information contained on the separation document, to include the
list of awards, was correct at the time the DD Form 214 was prepared and
issued.  Finally, his name is not included on the Vietnam Casualty Roster,
the official DA list of RVN battle casualties.  Therefore, the regulatory
burden of proof necessary to support award of the PH has not been satisfied
in this case.

4.  The applicant’s request to have his record corrected to show a lower
extremity (L) 3 profile was also carefully considered.  However, there
appears to be no error or injustice related to this issue.  His record does
contain information on the treatment he received for a foot condition (pes
planus) while on active duty.  It also contains documents showing that at
times during his active duty tenure, he held an L-3 profile as a result of
his foot condition.  However, his final physical profile, as evidenced by
the SF 88 on file, confirms he was assigned a Physical Profile of 111111
and medically cleared for separation on 8 July 1970.

5.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH and the L-3 profile now under
consideration on 24 September 1970.  Therefore, the time for him to file a
request for correction of any error or injustice related to this matter
expired on 23 September 1973.  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 evidence does show that based on his RVN service and campaign
participation, the applicant is entitled to the VSM with 4 bronze service
stars, RVN Gallantry Cross with Palm Unit Citation and RVN Civil Actions
Honor Medal First Class Unit Citation.  The omission of these awards from
his record and separation document is an administrative matter that does
not require Board action to correct.  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

___JNS__  ___DJ __  ___MJF_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice related to the Purple Heart
and L-3 physical profile issues in question.  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 Vietnam Service Medal with 4
bronze service stars, Republic of Vietnam Gallantry Cross with Palm Unit
Citation and Republic of Vietnam Civil Actions Honor Medal First Class Unit
Citation; and by providing him a corrected separation document that
includes these awards.




            ____John N. Slone_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040011669                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/08/11                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1970/09/24                              |
|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.  1021                |100.0000                                |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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