RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          19 August 2004
      DOCKET NUMBER:  AR2004100203


      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. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Curtis L. Greenway            |     |Member               |
|     |Mr. William D. Powers             |     |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.

2.  The applicant states that in early July 1970, his unit was ambushed at
      "Du Pho 4" as they were coming down a hill and when he went down for
cover, some sharp rocks tore through his pants leg and caused a
wound/bleeding in his right leg.

3.  The applicant provides a copy of a clinical record regarding the
treatment he sought and received at the time.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 19 February 1971.  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 was inducted in Fresno, California, on 20 February 1969.
He completed his training at Fort Lewis, Washington, as a light weapons
infantryman and was transferred to Vietnam on 19 July 1970.  He was
assigned as a coverman in the 63rd Infantry Platoon Combat Trackers (IPCT),
23rd Infantry Division.  He was advanced to the pay grade of E-4 on 26
November 1969.

4.  The clinical record provided by the applicant shows that he was treated
on 10 July 1970 for an old infected wound of the right leg with cellulites.
 The treatment record does not describe the nature of the wound or how it
occurred, but simply that it was cleaned and dressed.  Additionally, the
applicant's name is not contained on the Vietnam Casualty Listing and there
is no indication in his records that he was ever wounded/injured in combat.
 The applicant's records do show that he was awarded the Combat Infantryman
Badge (CIB) on 21 April 1970.

5.  He departed Vietnam on 19 July 1970 and was transferred to Fort Gordon,
Georgia, for duty as a "Track Layer" at the Military Police School.  He
remained at Fort Gordon until he was honorably released from active duty
(REFRAD) on the expiration of his term of service (ETS).  He had served 2
years of total active service and was awarded the National Defense Service
Medal, the Vietnam Service Medal with one bronze service star, the Republic
of Vietnam Campaign Medal and the CIB.  His records also show that he was
awarded the Bronze Star Medal on 4 July 1970.  However, that award was not
included on his DD Form 214 at the time of his REFRAD.

6.  A review of the applicant's records show that he had excellent conduct
and efficiency ratings throughout his service and that there is no evidence
of any disciplinary or derogatory actions being taken against the applicant
during his service.  However, he was not awarded the Army Good Conduct
Medal (AGCM) for his service during the period of 20 February 1969 to 19
February 1971.

7.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple
Heart is awarded for a wound/injury sustained as a result of hostile
action.  Substantiating evidence must be provided to verify that the
wound/injury was a result of hostile action, that the wound/injury must
have required treatment by a medical officer, and that the medical
treatment was made a matter of official record.

8.  Army Regulation 672-5-1, in effect at the time, established the
criteria for award of the AGCM.  It states, in pertinent part, that the
AGCM was established by Executive Order 8809, 28 June 1941 and was amended
by Executive Order 9323, 1943 and by Executive Order 10444, 10 April 1953
and is awarded for exemplary behavior, efficiency, and fidelity in active
Federal military service.  The regulation also states, in pertinent part,
that for first award only, upon termination of service on or after 27 June
1950, a period of service of less than 3 years but more than 1 year
qualifies for award of the AGCM.

9.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit
Register-Vietnam Era) was published to assist commanders and personnel
officers in determining or establishing the eligibility of individual
members for campaign participation credit, assault landing credit, and unit
citation badges awarded during the Vietnam Conflict.  Table 1 (Army Units
in Numerical Order) of the pamphlet indicates that the applicant’s unit was
subsequently awarded the Meritorious Unit Commendation (MUC) and Republic
of Vietnam Gallantry Cross with Palm (RVNGC w/Palm) Unit Citation during
the period he was assigned to the unit.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record as well as the evidence submitted by the
applicant with his application fails to show that the applicant was wounded
in action against the enemy on or about 10 July 1970.  While the evidence
does show that he was treated for an old wound, it does not describe the
nature of the wound or how it was incurred.

2.  While the applicant's veracity in this matter is not in question, the
lack of substantiating evidence to show that his wound/injury was incurred
in action against the enemy has not been met.  Therefore, lacking evidence
to the contrary, there is no basis to award him the Purple Heart at this
time.

3.  The evidence also shows that the applicant had excellent conduct and
efficiency ratings throughout his service and his records contain no
derogatory information that would serve to disqualify him for award of the
GCMDL.  Therefore, it must be presumed that the failure to award him the
GCMDL was the result of an administrative error.  Accordingly, it would be
in the interest of justice to award him the GCMDL for the period of
20 February 1969 to 19 February 1971.

4.  Additionally, the applicant's unit was subsequently awarded the RVNGC
w/Palm Unit Citation and the MUC for the period he served with the unit in
Vietnam.  Therefore, he is entitled to be awarded the RVNGC w/Palm Unit
Citation and the MUC and to have his records corrected to show that he was
awarded the BSM.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__fe____  __clg___  __wdp___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by awarding him the GCMDL
for the period of 20 February 1969 to 19 February 1971, the RVNGC w/Palm
Unit Citation and the MUC and by showing that he was awarded the BSM.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
award of the Purple Heart.



                 Fred Eichorn
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100203                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040819                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(GRANT)                                 |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |61/ph                                   |
|1.107.0015              |                                        |
|2.107.0034              |80/moc                                  |
|3.107.0094              |140/rvngc                               |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]