RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           4 August 2005
      DOCKET NUMBER:  AR20050000273


      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. James E. Anderholm            |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. LeVerne M. Douglas            |     |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 in March 1969, while serving as a
medical corpsman (MEDIC) in the Republic of Vietnam (RVN), he received a
fragmentation wound from incoming mortar or Rocket Propelled Grenade (RPG)
rounds during an early morning operation in the Central Highlands north of
Mang Yang Pass.  He claims to have treated the wound himself, and that he
removed the visible fragments.  He also claims to have stayed with the unit
until the operation was complete, and although the wound was not reported
to Headquarters, it was documented upon his separation from the service.

3.  The applicant provides Department of Veterans Affairs (VA) medical
treatment records, a third-party statement and a unit history report in
support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 15 December 1969.  The application submitted in this case
is dated 18 December 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 limitations 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 enlisted in the Regular Army and
entered active duty on 15 April 1968.  He was trained in, awarded and
served in military occupational specialty (MOS) 91B (Medical 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 15 December 1968 through 12 December 1969, and was
assigned to Company D, 1st Battalion, 50th Infantry Regiment, performing
duties in MOS 91B as an ambulance driver.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 is blank and contains no
entry indicating he was wounded in action; and Item 41 (Awards and
Decorations) does not include the PH in the list of earned awards. The
applicant last audited the DA Form 20 on 12 December 1969.

6.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no
orders, or other documents that indicate he was ever recommended for, or
awarded the PH.  The MPRJ is also void of any medical treatment records
indicating he was ever treated for a combat related wound.

7.  The applicant’s MPRJ does contain a Report of Medical History (SF 89)
completed by the applicant on 15 December 1969, in conjunction with his
separation physical examination.  The following entry is contained in the
physician’s summary portion of this document:  “Frag wounds to left leg”.
This document does not outline the circumstances under which the wound was
received, nor does it indicate that the wound was combat related.

8.  The MPRJ also contains a copy of a Report of Medical Examination (SF
88), dated 15 December 1969, which documents the applicant’s separation
physical examination.  The clinical evaluation portion of the SF 88 reveals
the examining physician found all areas evaluated normal.  Item 74 (Summary
of Defects) contains one entry indicating the applicant suffered from
hearing loss.  This document contains no reference to his ever having
received a battle related wound/injury.

9.  On 15 December 1969, the applicant was honorably separated after
completing 1 year, 7 months, and 3 days of active military service.  The DD
Form 214, as amended, indicates he earned the following awards during his
tenure on active duty:  National Defense Service Medal, Vietnam Service
Medal with
4 bronze service stars, RVN Campaign Medal with Device 1960, Combat Medical
Badge, Parachutist Badge, Expert Qualification Badge with Rifle Bar and
2 Overseas Bars.  The PH is not included in the list of authorized awards.
The applicant authenticated this document with his signature in Item 32
(Signature of Person Being Transferred or Discharged).

10.  The applicant provides VA medical treatment records dated between 1970
and 2004.  These documents indicate he had fragmentation wounds to the left
leg, but fail to reference military records as the source of the
information on these wounds.

11.  The applicant also provides a hand written letter from an individual
claiming to be a retired Marine Corps major general from the VA.  This
letter indicates the applicant was wounded in the left knee while serving
in the RVN.  He states the applicant is being compensated for this wound
and has retained foreign body (fragment).  He concludes by stating the
applicant was never awarded the PH for this wound, but should have been.

12.  During the processing of this case, a member of the Board staff
reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The
applicant’s name was not included in this official list of RVN battle
casualties.

13.  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.

14.  The awards regulation defines a wound 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.

15.  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 (1st Battalion, 50th Infantry
Regiment) was awarded the RVN Gallantry Cross with Palm Unit Citation and
RVN Civil Actions Honor Medal First Class Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH and the supporting
documents he provided were carefully considered.  However, by regulation,
in order to support award of the PH, it is necessary to establish that the
wound, for which the award is being made, was received as a direct result
of, or was caused by enemy action, the wound required treatment by a
medical officer, and a record of this treatment must have been made a
matter of official record.
2.  It does appear the applicant received a fragment wound while serving in
the RVN.   However, there are no medical documents on file showing this
injury was received as a direct result of, or that it was caused by enemy
action.  The fact that the fragmentation wound was mentioned during the
applicant’s final physical examination processing, and in several VA
medical treatment records prepared subsequent to his separation does not
automatically result in a conclusion that the wound was combat related.
Further, the statement provided from the retired major general provides no
direct account of the circumstances surrounding the applicant’s receipt of
the fragmentation wound in question.

3.  The applicant’s official military personnel record contains no
indication that he was ever wounded in action, or that he was treated for a
combat related wound.  His DA Form 20 is void of an entry in Item 40
showing he was wounded in action, and does not include the PH in the list
of authorized awards in Item 41.  The applicant last audited this record on
12 December 1969, during his separation processing.  This audit, in effect,
was his verification that the information contained on the DA Form 20, to
include Item 40 and Item 41, was correct on that date.

4.  Further, the PH is not included in the list of awards contained on his
DD Form 214, which he authenticated with his signature on the date of his
separation.  This signature, in effect, was his verification that the
information contained on the DD Form 214, to include the list of awards,
was correct at the time the separation document was prepared and issued.
Finally, the applicant’s name is not included on the Vietnam casualty
roster, the official DA list of RVN battle casualties.  As a result, the
regulatory burden of proof necessary to support award of the PH has not
been satisfied in this case.

5.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH now under consideration on 15 December
1969.  Therefore, the time for him file a request for correction of any
error or injustice expired on 14 December 1972.  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.

6.  The record confirms that based on his RVN service, the applicant is
entitled to the RVN Gallantry Cross with Palm Unit Citation and RVN Civil
Actions Honor Medal First Class Unit Citation.  The omission of these
awards from his record is an administrative matter that does not require
Board action.  As a result, the Case Management Support Division (CMSD),
St. Louis, Missouri will be requested to make the necessary corrections as
outlined in paragraph 3 of the
BOARD DETERMINATION/RECOMMENDATION section below.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JEA__  ___RTD _  __LMD  _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice related to award of the
Purple Heart.  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 RVN service and campaign participation,
he is entitled to the Valorous Unit Award, Republic of Vietnam Gallantry
Cross with Palm Unit Citation and, Republic of Vietnam Civil Actions Honor
Medal First Class Unit Citation; and by providing him a corrected
separation document that includes these awards.




            ____James E. Anderholm____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050000273                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/08/04                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1969/12/15                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |OS Rtn                                  |
|BOARD DECISION          |DENY with Adm Note                      |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  61   |107.0015                                |
|2.  46                  |107.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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