RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           9 November 2004
      DOCKET NUMBER:  AR2004102715


      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. Mark D. Manning               |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Leonard Hassell               |     |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, award of the Purple Heart (PH).

2.  The applicant states, in effect, that he was wounded while serving in
the Republic of Vietnam (RVN), but did not receive the PH because he never
left the field.  He states that he was the only machine gunner in his unit,
so the medical corpsman (MEDIC) bandaged him and he never left the field.

3.  The applicant provides two supporting statements in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 5 October 1970.  The application submitted in this case
was received on 5 February 2004.

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 record shows that he was inducted into the Army and
entered active duty on 4 March 1969.  He was trained in, awarded, and
served in the military occupational specialty (MOS) 11B (Infantryman) and
the highest rank he attained while serving on active duty was sergeant.

4.  The applicant’s Enlisted Qualification Record (DA Form 20) confirms
that he served in the RVN from 5 August 1969 through 1 October 1970.
During this RVN tour, he was assigned to Company D, 4th Battalion, 31st
Infantry Regiment,
196th Infantry Brigade, performing duties as an infantry rifleman and
automatic rifleman.  Item 40 (Wounds) is blank and contains no entry
indicating he was wounded/injured in action.
5.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no
orders or documents that indicate he was wounded in action, or that he was
ever recommended for or awarded the PH.

6.  On 5 October 1970, the applicant was honorably released from active
duty (REFRAD), by reason of overseas returnee.  The DD Form 214 he was
issued at the time confirms that he completed a total of 1 year, 7 months
and 2 days of active military service.  Item 24 (Decorations, Medals,
Badges, Commendations, Citations, and Campaign Ribbons Awarded or
Authorized) shows that he earned National Defense Service Medal, Combat
Infantryman Badge, Bronze Star Medal with 1st Oak Leaf Cluster, Vietnam
Service Medal (VSM); RVN Campaign Medal with 60 Device and Expert
Qualification Badge with Rifle Bar.

7.  The applicant provides two third-party statements from members who
served with him in the RVN.  Both statements indicate they were serving in
the RVN with the applicant when he was injured on 24 March 1970.

8.  During the processing of this case, a member of the Board staff
reviewed the Department of the Army (DA) Vietnam Casualty Roster.  This
search failed to reveal the applicant’s name among this official list of
RVN battle casualties.

9.  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 the PH is awarded to any member who has been wounded or killed
in action. A wound is defined as an injury to any part of the body from an
outside force or agent sustained under conditions defined by this
regulation.  In order to support awarding a member the PH, it is necessary
to establish that the wound, for which the award is being made, required
treatment by a medical officer.  Records of medical treatment for the wound
must support this treatment or injury received in action, and must have
been made a matter of official record.

10.  Paragraph 2-13 of the awards regulation contains guidance on award of
the VSM and it states, in pertinent part, 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.  Table B-1 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 the following four
campaigns:  Vietnam Summer-Fall 1969, Vietnam Winter-Spring 1970, Sanctuary
Counteroffensive 1970 and Vietnam Counteroffensive Phase VII.

11.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit
Register) establishes the eligibility of individual members for campaign
participation credit, assault landing credit, and unit citation badges
awarded during the Vietnam Conflict.  It confirms that during his tenure of
assignment in the RVN, the applicant’s unit (4th Battalion, 31st Infantry
Regiment) earned the Presidential Unit Citation and RVN Gallantry Cross
with Palm Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH and the supporting third-
party statements he provided were 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 provides no confirmation that the applicant was
ever wounded/injured in action or that he was ever recommended for or
awarded the PH.  Further, Item 40 of his DA Form 20 is blank and his name
is not included on the Vietnam Casualty Roster, which would indicate he was
never wounded/injured in action.  The third-party witness statements
provided, the applicant’s fellow soldiers attest only to the fact they were
serving in the RVN with the applicant on 24 March 1970 when he was injured.
 While the veracity of these statements is not in question, absent evidence
of record to corroborate that the injury was the direct result of or caused
by enemy action, the regulatory burden of proof necessary to support award
of the PH has not been satisfied in this case.

3.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH on 5 October 1970.  Therefore, the
time for him to file a request for correction of any error or injustice
expired on
4 October 1973.  However, he 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.

4.  The record shows that based on his service and campaign participation
in the RVN, the applicant is entitled to the Presidential Unit Citation,
RVN Gallantry Cross with Palm Unit Citation and 4 bronze service stars with
his VSM.  Adding these awards to his record is an administrative matter
that does not require Board action.  Thus, correction of his 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

_MDM___  _LDS___  _LH_____  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 he is entitled to the Presidential Unit Citation,
Republic of Vietnam Gallantry Cross with Palm Unit Citation and 4 bronze
service stars with his Vietnam Service Medal; and by providing him a
corrected separation document that includes these awards.




            __MARK D. MANNING _
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004102715                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/11/DD                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1970/10/05                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Overseas Returnee                       |
|BOARD DECISION          |DENY w Admin Note                       |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  46   |107.0000                                |
|2.  61                  |107.0061                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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