RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           20 May 2004
      DOCKET NUMBER:   AR2004100100


      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. Wanda L. Waller               |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Fred Eichorn                  |     |Member               |
|     |Mr. Robert Osborn                 |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 DD Form 214 (Report of
Transfer or Discharge) to show award of the Purple Heart and the Combat
Infantryman Badge.

2.  The applicant states that in mid/late 1969 in Vietnam while attached to
the 173rd Airborne Infantry he engaged in several firefights.  He contends
that one night he was wounded by fragments from a satchel charge during an
engagement with sapper units.

3.  The applicant provides a copy of his DD Form 214; his DA Form 20
(Enlisted Qualification Record); a letter, dated 6 February 2004, from a
Member of Congress; an eyewitness statement, dated 2 December 2003; and a
letter, dated 6 February 2004, from the applicant’s wife.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors which occurred
on
11 June 1970.  The application submitted in this case is dated 8 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 enlisted on 27 October 1967 for a period of 3 years.  He
was awarded military occupational specialty (MOS) 31M (radio relay and
carrier operator) and served in this MOS while assigned to Company B, 54th
Signal Battalion (Corps) in Vietnam from 1 May 1968 through 11 June 1970.
On
11 June 1970, the applicant was released from active duty.

4.  The applicant's DD Form 214 shows the National Defense Service Medal,
the Vietnam Campaign Medal, the Vietnam Service Medal, four awards of the
Overseas Service Bar, the Expert Marksmanship Qualification Badge with
Rifle Bar, and the Sharpshooter Marksmanship Qualification Badge with Rifle
Bar as authorized awards.





5.  There is no evidence in the available records which shows that the
applicant was awarded the Purple Heart or was wounded as a result of
hostile action in Vietnam.

6.  The applicant's DA Form 20 does not show entitlement to the Purple
Heart and item 40 (Wounds) on his DA Form 20 is blank.  The applicant's
name does not appear on the Vietnam Casualty Roster.

7.  In support of his claim, the applicant provided an eyewitness
statement, dated 2 December 2003, from a fellow soldier at the time in
question.  The soldier attests that in January 1969 they (himself and the
applicant) got into a fight with two Vietnamese soldiers in a bar in
Vietnam.  One of the Vietnamese soldiers left the bar, returned with a
rifle, and began shooting at the applicant.  He attests that the applicant
took off in his jeep and later when he met up with the applicant he
discovered that the applicant had a wound on his left leg and that the jeep
had four bullet holes in it.

8.  The applicant also provided a letter, dated 6 February 2004, from his
wife.  She indicates that her husband thinks the shrapnel wound occurred in
June or July 1969 and that the attending medic said he would get a Purple
Heart due to his injury.  She also states that the applicant's gunshot
wound received from Vietnamese soldiers never received medical attention
and that he bandaged it and went on.

9.  There are no orders for the Combat Infantryman Badge in the applicant's
service personnel records.

10.  The applicant's service personnel records show the applicant
participated in seven campaigns during his assignment in Vietnam.

11.  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 the applicant's unit was cited for
award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation
based on Department of the Army General Orders Number 54, dated 1974.

12.  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, and the medical treatment must have been made a matter of
official record.

13.  Army Regulation 600-8-22 provides, in pertinent part, that the Combat
Infantryman Badge is awarded to infantry officers and to enlisted and
warrant officer persons who have an infantry MOS.  They must have served in
active ground combat while assigned or attached to an infantry unit of
brigade, regimental or smaller size.  The Awards Branch of the U.S. Army
Human Resources Command has advised, in similar cases, that during the
Vietnam era the Combat Infantryman Badge was awarded only to enlisted
individuals who held and served in MOS 11B, 11C, 11F, 11G, or 11H.

14.  Army Regulation 600-8-22, in pertinent part, authorizes award of a
bronze service star, based on qualifying service, for each campaign listed
in Appendix B of this regulation and states that authorized bronze service
stars will be worn on the appropriate service medal.   This regulation
provides that a silver service star is authorized in lieu of five bronze
service stars.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided no evidence that he was wounded by fragments
from a satchel charge during an engagement with sapper units.  The
statement provided in support of the applicant’s claim indicates that he
was wounded by a Vietnamese soldier with a rifle following a bar fight, not
hostile action.  His wife's statement does not show that he was wounded as
a result of hostile action.  There is no evidence of record which shows the
applicant was wounded or treated for wounds as a result of hostile action
in Vietnam.  Therefore, there is insufficient evidence on which to base
award of the Purple Heart in this case.

2.  Evidence of record shows the applicant served in MOS 31M while assigned
to a signal battalion in Vietnam.  There is no evidence of record which
shows the applicant served in an infantry MOS or served in active ground
combat while an assigned member of an infantry unit of brigade or smaller
size in Vietnam.  Therefore, there is insufficient evidence on which to
base award of the Combat Infantryman Badge in this case.

3.  The applicant participated in seven campaigns during his assignment in
Vietnam which entitles him to award of the Vietnam Service Medal with one
silver service star and two bronze service stars.

4.  The applicant’s unit received the Republic of Vietnam Gallantry Cross
with Palm Unit Citation while he was assigned to it.

5.  Records show the applicant should have discovered the alleged errors
now under consideration on 11 June 1970; therefore, the time for the
applicant to file a request for correction of any error or injustice
expired on 10 June 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.


6.  Evidence shows that the applicant’s records contain administrative
errors which do 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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

JS______  FE____  RO________  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 errors in the records of the
individual concerned should be corrected.  Therefore, the Board requests
that the CMSD-St. Louis administratively correct the records of the
individual concerned to show award of the Vietnam Service Medal with one
silver service star and two bronze service stars and the Republic of
Vietnam Gallantry Cross with Palm Unit Citation.



            __John Slone_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100100                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040520                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107.0015                                |
|2.                      |107.0111                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |