RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 January 2005
      DOCKET NUMBER:  AR2004106596


      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. Bernard P. Ingoldr            |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Ms. Delia R. Trimble              |     |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 injured in October 1971,
while serving in the Republic of Vietnam (RVN).  He claims that the result
of this injury was shrapnel imbedded in his skull.  He claims that his unit
personnel failed to perform the administrative measures necessary for him
to receive the PH and he voluntarily relocated shortly after receiving the
injury and was unable to ensure his records were properly updated to
reflect his injury.

3.  The applicant provides a copy of his separation document (DD Form 214)
in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 9 December 1971.  The application submitted in this case
is dated 24 March 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 he enlisted in the Regular Army and
entered active duty on 12 March 1969.  He was trained in and awarded
military occupational specialty (MOS) 76P (Stock Control & Supply
Specialist) and the highest rank he attained while serving on active duty
was specialist four (SP4).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he
served in the RVN from 20 June 1970 through 12 October 1971.  During this
RVN tour, he was assigned to the United States Army Depot Qui Nhon through
5 February 1971 and to the 552nd Maintenance Company through 12 October
1971.  Item 40 (Wounds) is blank and the PH is not included in the list of
awards contained in Item 41 (Awards and Decorations).  Item 44 (Time Lost)
contains an entry indicating the applicant accrued 62 days of time lost
from 7 October through 8 December 1971, due to the intemperate use of
drugs.  Item 48 (Date of Audit) shows he last audited his DA Form 20 on 23
June 1971.
5.  The applicant’s Military Personnel Records Jacket (MPRJ) is void of any
medical treatment documents and the applicant’s military medical record was
not made available to the Board for review.  The MPRJ does contain a letter
prepared by the Commander, 552nd Maintenance Company, RVN that was prepared
on 15 January 1971.  This letter confirms the applicant was medically
evacuated to the Army Hospital, Fort Campbell, Kentucky on 13 October 1971.
 There is no indication of the medical condition that caused this
evacuation contained in the letter.  It also contains a Disposition Form
from the
Fort Campbell Hospital Commander that indicates competent authority found
the applicant was unable to perform his duties because of the intemperate
use of drugs.

6.  On 9 December 1971, the applicant was honorably separated after
completing 2 years, 6 months and 26 days of creditable active military
service and accruing 62 days of time lost.  The DD Form 214 he was issued
at the time shows that during his active duty tenure, he earned the
National Defense Service Medal, Vietnam Service Medal and Vietnam Campaign
Medal.  The applicant authenticated this document with is signature in Item
32 (Signature of Person Being Transferred or Discharged).

7.  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.

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 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.  This treatment must be supported by
records of medical treatment for the wound or injury received in action,
and must have been made a matter of official record.

9.  Paragraph 2-13 of the awards regulation contains guidance on award of
the Vietnam Service Medal 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
Sanctuary Counteroffensive 1970 and Vietnam Counteroffensive Phase VII
campaigns.
10.  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.  The applicant’s claim of entitlement to the PH was 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.  Although the record shows the applicant was medically evacuated from
the RVN, there is no evidence this medical evacuation was necessitated by a
combat related wound or injury.  There were no medical records made
available to the Board, but documents on file in the applicant’s MPRJ
appear to indicate the medical evacuation was related to the applicant’s
intemperate use of drugs.

3.  The veracity of the applicant’s claim that he was injured while serving
in the RVN is not in question.  However, to support award of the PH, there
must be evidence confirming the wound or injury for which the award is
being made was the direct result of or caused by enemy action.  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.  Lacking any evidence of record to corroborate his claim of
entitlement to the PH, the regulatory burden of proof necessary to support
award of the PH has not been satisfied in this case.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 December 1971.  Thus, the time for
him to file a request for correction of any error or injustice expired on 8
December 1974.  However, he failed to 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.  The record also confirms that based on his RVN service and campaign
participation, the applicant is entitled to the Republic of Vietnam
Gallantry Cross with Palm Unit Citation, and 2 bronze service stars with
his Vietnam Service Medal.  The omission of these awards from his record
and separation document is an administrative matter that does not require
action by the Board.  Correction of his records will be made 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

___LCB _  __DRT__  __BPI___  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 based on his service and campaign participation in
the RVN, he is entitled to the Republic of Vietnam Gallantry Cross with
Palm Unit Citation and 2 bronze service stars with his Vietnam Service
Medal; and by providing him a corrected separation document that includes
these awards.




            ____Bernard P. Ingold____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004106596                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/01/19                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1971/12/09                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |O/S Rtn                                 |
|BOARD DECISION          |DENY with Note                          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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