RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           27 July 2004
      DOCKET NUMBER:  AR2004100187


      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. Lisa O. Guion                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Thomas E. O'Shaughnessy, Jr.  |     |Member               |
|     |Ms. Eloise C. Prendergast         |     |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, in effect, award of the Purple Heart (PH) with
1st Oak Leaf Cluster (OLC).

2.  The applicant states, in effect, that he wants to have his second award
of the PH added to his separation document (DD Form 214).

3.  The applicant provides no documentary evidence in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 19 September 1968.  The application submitted in this case
is dated 23 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 and entered active duty on 18 May 1967.  He
successfully completed basic training at Fort Knox, Kentucky and advanced
individual training (AIT) at Fort Gordon, Georgia.  Upon completion of AIT,
he was awarded military occupational specialty 11B (Light Weapons
Infantryman).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows, in
Item 31 (Foreign Service), that he served in the Republic of Vietnam (RVN)
from 21 December 1967 through 12 March 1968.  Item 40 (Wounds) contains one
entry, which indicates the applicant received fragment wounds to his head
on 29 February 1968.  Item 41 (Awards and Decorations) contains a list of
the awards he received during his active duty tenure.  This list includes
the National Defense Service Medal (NDSM), Vietnam Service Medal (VSM),
Parachutist Badge (PB), Combat Infantryman Badge (CIB), RVN Campaign Medal
(RVNCM) and the Purple Heart (PH).
5.  The applicant’s Military Personnel Records Jacket (MPRJ) contains
General Order (GO) Number (No.) 27, published by Fitzsimons General
Hospital, dated 25 March 1968.  This order shows that he was awarded the PH
for wounds received as a result of hostile action in the RVN on 27 February
1968.  The MPRJ contains no additional orders or other documents showing
that he was wounded or injured in action a second time or that he was ever
recommended for or awarded the PH with 1st OLC.

6.  There is a Clinical Record (SF 502), dated 5 July 1968, on file that
contains an entry on the applicant’s past medical history.  This document
indicates that two months prior to receiving fragment wounds to his head,
he sustained and was treated for an injured in his right thigh.  However,
there is no indication on how he incurred the thigh injury or that confirms
it was the result of or caused by hostile action.

7.  On 19 September 1968, the applicant was honorably released from active
duty by reason of permanent disability retirement.  The separation document
issued to him at the time confirms that he earned the following awards
during his active duty tenure:  NDSM, VSM with 1 bronze service star, PB,
CIB, RVNCM, Sharpshooter Qualification Badge with Rifle Bar, and Marksman
Qualification Badge with Pistol Bar.  The PH with 1st OLC is not included
in the list of authorized awards.  The applicant authenticated the DD Form
214 with his signature on the date of his separation.

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 awarding the PH.  It states, in pertinent
part, that in order to award a PH there must be evidence that a member was
wounded or injured as a result of enemy action.  The wound or injury for
which the PH is being awarded must have required treatment by a medical
officer, this treatment must be supported by medical treatment records that
were made a matter of official record.  The regulation further stipulates
that a PH is authorized for the first wound, but for each subsequent award
an Oak Leaf Cluster will be awarded to be worn on the medal or ribbon.

9.  Department of the Army General Order Number 8, dated in 1974,
authorized the award of the Republic of Vietnam Gallantry Cross with Palm
Unit Citation to all personnel assigned to the RVN from 8 February 1962
through 28 March 1973.
DISCUSSION AND CONCLUSIONS:

1.  By regulation, in order to support award of the PH there is must be
evidence to show that the wound/injury for which the award is being made
was the direct result of or caused by enemy action.  The evidence of record
includes a clinical record that contains a narrative summary that shows the
applicant sustained an injury to his right thigh two months prior to
receiving the fragmentation wounds to his head on 28 February 1968.
However, this medical record fails to provide any indication that the thigh
injury was combat related.

2.  The evidence further confirms he was awarded the PH for the 28 February
1968 fragmentation wounds to the head and that orders were published
announcing the initial award of the PH as a result.  Had the applicant been
awarded the PH for the thigh injury he received two months earlier, these
orders would have awarded him the PH 1st OLC for the 28 February 1968
fragmentation wounds to his head.

3.  The evidence of record provides no indication that the applicant
received combat related wounds/injuries on two separate occasions while
serving in the RVN.  Item 40 of his DA Form 20 contains one entry that
indicates he was wounded/injured in action on 28 February 1968 and his MPRJ
contains orders awarding him the PH for this incident.

4.  In addition, the applicant’s records contains no entries or documents
that indicate he ever received a second combat related wound/injury or that
he was recommended for a second award of the PH (PH 1st OLC).  Further, he
authenticated his DD Form 214 with his signature on 19 September 1968,
thereby verifying the information contained therein, to include the list of
awards containing just one PH, was correct at the time the document was
issued.  In view of the facts of this case, the regulatory burden of proof
necessary to support award of the PH 1st OLC has not been satisfied.

5.  During the review of this case, it was determined that based on his
service
in the RVN, the applicant is entitled to receive the Republic of Vietnam
Gallantry Cross with Palm Unit Citation.  Therefore, it would also be
appropriate to
add this award to his record at this time.  The omission of the award
indicated in the preceding paragraph from the applicant’s record is an
administrative matter that 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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

_MM____  __ECP___  _TEO___  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 that the applicant was awarded the Republic of Vietnam
Gallantry Cross with Palm Unit Citation.




               ___Melvin H. Meyer______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100187                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/07/27                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY with note                          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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