RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          9 September 2004
      DOCKET NUMBER:  AR2004100098


      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. Luis Almodova                 |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. James E. Anderholm            |     |Member               |
|     |Ms. Linda D. Simmons              |     |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 he be awarded the Purple Heart for a wound
he sustained while he served in Vietnam.

2.  The applicant states that while he was deployed out of Phu Bai, he
received a gunshot wound below the left shoulder.  He was medically
evacuated to Phu Bai and then to Japan.  He was further medically evacuated
to the Continental United States and this resulted in his being discharged
at Fort Sheridan, Illinois.  He alleges that he was informed that he would
receive his Purple Heart but it does not appear on his separation document.

3.  The applicant provides a copy of his DD Form 214, Report of Transfer or
Discharge, and a copy of a Department of Veterans Affairs Rating Decision,
which was made on 8 June 1971, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error, which occurred on
10 April 1970.  The application submitted in this case is dated 27 October
2003.

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 limitation 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 military records show that he was inducted into the
Army of the United States on 29 August 1968.  He received his basic combat
training at Fort Polk, Louisiana, and his advanced individual training at
Fort Bliss, Texas.  Upon completion of all required military training, he
was awarded military occupational specialty (MOS) 16F, Light Air Defense
Artillery Crewman.

4.  The applicant was assigned to and arrived in Vietnam on 5 February
1969.  He was assigned to Battery D, 1st Battalion, 44th Artillery, 108th
Artillery Group.  Item 38 (Record of Assignments), of the applicant's DA
Form 20, Enlisted Qualification Record, shows that the applicant was
assigned to the Medical
Holding Company, 249th General Hospital, as a patient on 27 December 1969,
and on 7 January 1970, he was medically evacuated to and assigned to the
Medical Holding Detachment, U.S. Army Medical Detachment, Naval Hospital,
Great Lakes, Illinois.

5.  The applicant was honorably released from active duty, on 10 April
1970, in the rank and pay grade of Specialist Four/E-4, under the
provisions of Army Regulation (AR) 635-200, and was given a Separation
Program Number of 412 (Enlisted member of medical holding detachments who,
upon completion of hospitalization, do not intend to immediately enlist or
reenlist in the Regular Army).  On his release from active duty, the
applicant had 1 year, 7 months, and 12 days active military service.

6.  Block 24 (Decorations, Medals, Badges, Commendations, Citations and
Campaign Ribbons Awarded or Authorized), of the applicant's DD Form 214,
shows he was awarded the following:  the National Defense Service Medal;
the Vietnam Service Medal; the Republic of Vietnam Campaign Medal; the
Marksman Marksmanship Qualification Badge, with Rifle Bar (M-14); and the
Expert Marksmanship Qualification Badge, with Automatic Rifle Bar (M-16).
The Purple Heart is not shown among these awards.

7.  There is no entry in Item 40 (Wounds) of the applicant's DA Form 20 to
show that he was wounded in action against a hostile force.  There is no
entry in Item 41 (Awards and Decorations), of the DA Form 20, showing that
he was awarded the Purple Heart.  There are no orders in his military
personnel records awarding him the Purple Heart.

8.  The applicant's name does not appear on the Vietnam Casualty List.

9.  A search of an award orders consolidations on file at the Awards
Section, Human Resources Command, was made for orders awarding the
applicant the Purple Heart.  No orders were found in this search.

10.  The VA Rating Decision, dated 8 June 1971, states, "There is a service
record 6-21-69, follow-up examination, which disclosed a small fragment of
the left temple about 2 cm from entrance wound which was debrided and
fragments removed and sutured.  From history given at VA examination, it
appears these GSW (gunshot wounds) occurred on 12-16-69 in Vietnam when one
fragment penetrated the upper left chest near the armpit and exit was the
left arm.  Discharge examination report 4-9-70 records a 3 inch scar of the
left shoulder
and a 1 and 1/2 inch scar, GSW of the left arm, obviously GSW scars
although there is no confirming S/R (service records) regarding left
shoulder."

11.  On 17 August 2004, a staff member called a VA representative and asked
for those documents that were used in arriving in their rating decision for
award of service-related compensation and other benefits.  On 2 September
2004, the VA representative provided seven documents among which was:

      a.)  a Standard Form (SF) 509, Doctor's Progress Notes.  This SF 509
contained an entry dated 21 June 1969, which states, "Small frag of left
temple.  Can feel frag under the skin about 2 cm from entrance wound."  The
area was opened, debrided, the frag was removed and the wound was closed
with sutures.  The SF 509 contains no language to indicate that the
fragmentation wound was received in active ground combat with a hostile
force.


      b.)  an unnumbered form, Chronological Record of Medical Care, with
two entries showing he received medical treatment on 13 and 15 December
1969 for an illness.  Entries are not indicative of those made when a
person was treated for a wound or injury.

12.  The applicant's DD Form 214 shows entitlement to the Vietnam Service
Medal; however, it does not show the bronze service stars to which the
applicant is entitled for his campaign participation.

13.  While in Vietnam, the applicant participated in the following four
campaigns:  the Vietnam Counteroffensive, Phase VI, which extended from 2
November 1968 through 22 February 1969; the Tet 69 Counteroffensive, which
extended from 23 February through 8 June 1969; the Vietnam Summer-Fall
1969, which extended from 9 June through 31 October 1969; and the Vietnam
Winter-Spring 1970, which extended from 1 November 1969 through 30 April
1970.

14.  AR 600-8-22, in pertinent part, provides for award of a bronze service
star, based on qualifying service, for each campaign listed in its Appendix
B and states that authorized bronze service stars will be worn on the
appropriate service medal, in this case, the Vietnam Service Medal.

15.  Department of the Army (DA) Pamphlet 672-3, Unit Citation and Campaign
Participation Credit Register, dated 29 January 1988, lists unit awards
received by units serving in Vietnam.  This document shows that the unit
the applicant
served with in Vietnam, Battery D, 1st Battalion, 44th Artillery, 108th
Artillery Group, a subordinate unit of the U.S. Army Vietnam (USARV), was
awarded the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation,
for the period 20 July 1965 through 28 March 1973, by DAGO 8, dated 1974.

16.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 April 1970; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 9 April 1973.  However, 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant received a
fragmentation wound to his left temple on about 21 June 1969; however,
there is insufficient information (i.e., indisputable evidence that the
wound was sustained while the applicant was actively engaged in combat with
an armed enemy at the time he received the wound), upon which to base award
of the Purple Heart for this injury.

2.  The rating decision made by the VA on 8 June 1971, which the applicant
submitted to support his request for award of the Purple Heart, was made
from a history he provided to VA representatives.  The VA admits, in its
narrative, that no service records were available to support the
applicant's report that he sustained a gunshot wound to the upper left
chest near the armpit whose exit was the left arm on 16 December 1969.
Based on the available evidence of record, the applicant is not eligible
for award of the Purple Heart at this time.

3.  The facts and circumstances surrounding his medical evacuation from
Vietnam are not in his service personnel records.  The evidence only shows
that he was medically evacuated and that he required medical treatment
before he was released from active duty.  The applicant is therefore
ineligible to be awarded the Purple Heart and to have it shown on his DD
Form 214 at this time.

4.  A search of an award orders consolidations on file at the Awards
Branch, Human Resources Command, failed to produce a set of orders awarding
the applicant the Purple Heart while he served in Vietnam.
5.  The applicant participated in four campaigns during his service in
Vietnam.  He is therefore eligible for award of four bronze service stars
to be affixed to his already-awarded Vietnam Service Medal and to have them
shown on his DD Form 214.

6.  The applicant served with Battery D, 1st Battalion, 44th Artillery,
108th Artillery Group, a subordinate unit of USARV, at the time it was
awarded the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation.
He is therefore entitled to have this unit citation shown on his DD Form
214.

7.  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

__jev___  __jea___  __lds___  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 by
awarding the applicant four bronze service stars to be affixed to his
already awarded Vietnam Service Medal, to denote his participation in four
campaigns while he served in the Republic of Vietnam, and the Republic of
Vietnam Gallantry Cross, with Palm Unit Citation, and having these awards
added to his DD Form 214.




                 James E. Vick
            ______________________
                    CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004100098                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040909                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  46   |107.0000                                |
|2.  61                  |107.0015                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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