RECORD OF PROCEEDINGS


            IN THE CASE OF:

      BOARD DATE:         24 June 2004
      DOCKET NUMBER:   AR2004103788


      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. Michael J. Fowler             |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. James C. Hise                 |     |Chairperson          |
|     |Mr. Stanley Kelley                |     |Member               |
|     |Mr. Hubert O. Fry Jr.             |     |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 award of the Purple Heart.

2.  The applicant states that he was never issued a Purple Heart for wounds
received while serving in Vietnam.

3.  The applicant provides a DD Form 214 (Armed Forces of the United States
Report of Transfer or Discharge) with an effective date of 30 November
1970; Headquarters, United States Army Vietnam General Orders Number 1371,
dated 23 May 1970; and a award certificate for the Army Commendation Medal
(ARCOM) dated, 26 May 1970.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged injustice which
occurred on 30 November 1970.  The application submitted in this case is
dated 9 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 was inducted on 13 March 1969.  He was assigned to the
2nd Battalion, 40th Field Artillery, 199th Infantry Brigade in Vietnam from
29 January 1970 through 30 November 1970.  On 30 November 1970, the
applicant was honorably released from active duty in the rank of specialist
four/pay grade E-4.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and
Campaign, Ribbons Awarded or Authorized) of the applicant's DD Form 214,
does not show award of the Purple Heart.

5  Item 41 (Wounds)of the applicant’s DA Form 20 (Enlisted Qualification
Record) does not show the applicant was wounded

6.  There are no General Orders in the applicant’s service personnel
records that show he was awarded the Purple Heart.  The applicant's name
does not appear on the Vietnam Casualty Roster.

7.  The applicant provided an ARCOM certificate dated 26 May 1970.  This
document shows he was awarded the ARCOM for his actions on 18 April 1970 in
the Republic of Vietnam.

8.  The applicant provided Headquarters U.S. Army, Vietnam (USARV), General
Orders Number 1371, dated 23 May 1970.  This awarded the applicant the
ARCOM with "V" Device.

9.  The Reason paragraph of General Orders 1371 stated:  "Despite the
intense fire, and despite his wounds, the applicant continually took an
exposed position without regard for his personal safety in order to engage
the enemy."

10.  Review of the applicant's records shows that he is entitled to
additional awards which are not listed on his DD Form 214.

11.  There is no evidence the applicant received the first award of the
Good Conduct Medal.  There also is no evidence the applicant was
disqualified by his chain of command from receiving the Good Conduct Medal.
 His records do not contain any adverse information and he received conduct
and efficiency ratings of "excellent" throughout his service.

12.  Department of the Army Pamphlet 672-3 shows that, at the time of the
applicant’s assignment to the 2nd Battalion, 40th Field Artillery, it was
cited for award of the Republic of Vietnam Gallantry Cross with Palm Unit
Citation based on Headquarters Department of the Army General Orders Number
51, dated 1971.

13.  Department of the Army Pamphlet 672-3 shows that, at the time of the
applicant’s assignment to the 2nd Battalion, 40th Field Artillery, it was
cited for award of the Republic of Vietnam Civil Actions Honor Medal First
Class Unit Citation based on Headquarters Department of the Army General
Orders Number 51, dated 1971.

14.  The applicant’s service records indicate he served in three campaigns
in Vietnam:  the Vietnam Winter-Spring Campaign 1970, the DA Sanctuary
Counteroffensive Campaign, and the Vietnam Counteroffensive Phase VII
Campaign.  However, his DD Form 214 shows no campaign participation.

15.  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.  This regulation also provides that there is no statute of
limitations on request for award of the Purple Heart.
16.  Army Regulation 600-8-22 provides that the Good Conduct Medal is
awarded to individuals who distinguish themselves by their conduct,
efficiency and fidelity during a qualifying period of active duty enlisted
service.  This period is 3 years except in those cases when the period for
the first award ends with the termination of a period of Federal military
service.  Although there is no automatic entitlement to the Good Conduct
Medal, disqualification must be justified.

17.  Army Regulation 600-8-22, provides, in pertinent part, for 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to award of the Purple Heart
for wounds he sustained in Vietnam.

2.  There are no orders in the applicant’s service personnel records, which
show that he was awarded the Purple Heart, and there is no evidence in his
records that he was treated for wounds as a result of hostile action.
However, USARV General Orders Number 1371 clearly show that the applicant
sustained wounds as a result of hostile action.

3.  Based on the foregoing, the applicant is entitled to award of the
Purple Heart for wounds sustained during hostile action on 18 April 1970 in
Vietnam.

4.  The applicant is entitled to the first award of the Good Conduct Medal
based on completion of qualifying service from 13 March 1969 through 30
November 1970 ending with termination of a period of Federal military
service.

5.  General Orders show the applicant is entitled to award of the Republic
of Vietnam Gallantry Cross with Palm Unit Citation.

6.  General Orders show the applicant is entitled to award of the Republic
of Vietnam Civil Actions Honor Medal First Class Unit Citation.

7.  The applicant’s participation in three campaigns in Vietnam qualifies
him for award of three bronze service stars to be worn on his Vietnam
Service Medal.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 November 1970.  Therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
29 November 1973.  Although, the applicant did not file within the ABCMR's
statute of limitations, it is appropriate to waive failure to timely file
in this case based on the fact there is no statute of limitations on
request for award of the Purple Heart.

BOARD VOTE:

_JH_____  ___HOF_  ___SK_     GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for 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 to show award of the Purple Heart for
wounds sustained on 18 April 1970; award of the Good Conduct Medal (1st
Award) for the period 13 March 1969 to 30 November 1970; award of the
Republic of Vietnam Gallantry Cross with Palm Unit Citation; award of the
Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation;
and award of three bronze service stars to be worn on his Vietnam Service
Medal.




            ____James C. Hise_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004103788                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040624                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |. . . . .                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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