RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 DECEMBER 2004
      DOCKET NUMBER:  AR2004104977


      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. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Ronald Weaver                 |     |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 his DD Form 214 be corrected to show award
of the Purple Heart.

2.  The applicant states that all copies [of the award, certificate?] were
sent to the Office of the Chief of Legislative Liaison.

3.  The applicant provides no evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 6 September 1972.  The application submitted in this case
is dated   7 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 enlisted in the Army for three years on 11 September
1967, trained as a cook, and in January 1968 was assigned to a signal
battalion in Europe.  On 22 May 1968 he reenlisted in the Army for three
years.  On            19 December 1969 he again reenlisted for three years.
 In February 1970 the applicant was assigned as a cook to Headquarters and
Headquarters Company, 1st Battalion, 7th Cavalry, in Vietnam.

4.  While in Vietnam he was treated for a pain in his right side and chest
from a year old automobile accident, and treated for an abscess to his
right arm.

5.  On 30 September 1970 the applicant was awarded the Air Medal for
meritorious achievement for the period May 1970 to September 1970.  On
     9 December 1970 he was awarded the Army Commendation Medal for
meritorious service for the period February 1970 to February 1971.

6.  The applicant's DA Form 20 (Personnel Qualification Record) shows that
he was a casual enroute to the United States on 22 December 1970, and that
he was assigned as a cook to a transportation company at Fort Polk,
Louisiana in February 1971.  That form shows that his service in Vietnam
was from                7 February 1970 to 22 December 1970.  It shows that
he was awarded the Air Medal and the Army Commendation Medal.  It does not
indicate that he was awarded the Purple Heart, or that he had been wounded
in action.

7.  The applicant participated in four campaigns during his tour of duty in
Vietnam.  The 1st Battalion, 7th Cavalry was awarded the Valorous Unit
Award and the Republic of Vietnam Gallantry Cross Unit Citation with Palm
for its actions while he was assigned to that organization.

8.  A 3 March 1971 periodic medical examination report shows that the
applicant was medically qualified for duty.  There is nothing on that
report to show that he was injured or wounded as a result of hostile
action.  In the report of medical history that he furnished for the
examination, the applicant did not indicate that he had been wounded in
action.

9.  On 29 May 1971 the applicant sustained a fracture to his neck caused by
hitting the ground after diving into shallow water.

10.  While at Fort Polk, the applicant received nonjudicial punishment
under   Article 15, Uniform Code of Military Justice for AWOL, for
unlawfully hitting a fellow Soldier, for signing an official statement that
he knew to be false with intent to deceive, for failing to obey a lawful
general regulation (on two occasions), and for disobeying a lawful order.

11.  On 16 August 1972 court-martial charges were preferred against the
applicant for disrespect to a noncommissioned officer. The applicant on
        31 August 1972 requested discharge for the good of the service in
lieu of trial by court-martial.  His request was approved.  He was
discharged for the good of the service under honorable conditions on 6
September 1972.  His DD Form 214 shows his service in Vietnam was from 7
February 1970 to 22 December 1970.  It does not show award of the Purple
Heart.

12.  A copy of a certificate that the applicant submitted to St. Louis
shows that he was awarded the Purple Heart on 27 December 1970 for wounds
received in action on 27 December 1970.  The certificate was signed by the
Commanding General, 1st Cavalry Division.  In his request to St. Louis for
award of the Purple Heart, the applicant stated that he lost his medal and
[original] certificate in a fire. In response thereto, the Reserve
Components Personnel and Administration Center at St. Louis informed him on
6 May 1985 that it could not verify his entitlement to award of the Purple
Heart, and requested that he forward a copy of the general order awarding
him the medal, stating that the certificate did not constitute authority
for issuing the Purple Heart.

13.  Army Regulation 600-8-22 provides 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.

14.  The Vietnam Casualty Roster maintained by this agency does not list
the applicant as being wounded in action.

DISCUSSION AND CONCLUSIONS:

1.  The copy of the Purple Heart certificate contained in the applicant's
records is somewhat suspect, in that he was awarded the Purple Heart on the
same date that he was wounded in action, and that he was wounded in action
apparently after he had left Vietnam.

2.  Nevertheless, there is no evidence that he was treated for a wound;
consequently, no probative evidence that he was wounded in action.  There
is no basis for award of the Purple Heart.  The applicant's request is not
granted.

3.  The applicant participated in four campaigns during his tour of duty in
Vietnam.  He is entitled to award of the Vietnam Service Medal with four
bronze service stars (one for each campaign).  He is also entitled to award
of the Valorous Unit Award and the Republic of Vietnam Gallantry Cross Unit
Citation with Palm.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 September 1972; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on      5 September 1975.  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.

5.  Evidence shows that the applicant’s records contain administrative
error which 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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__YM ___  __ML ___  __RW___  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 award of the Vietnam Service Medal with four bronze
service stars, the Valorous Unit Award, and the Republic of Vietnam
Gallantry Cross Unit Citation with Palm.



                                  ___ Yolanda Maldonado____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004104977                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041216                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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