RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         30 August 2005
      DOCKET NUMBER:  AR20050000719


      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             |
|     |Ms. Betty A. Snow                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Ms. Yolanda Maldonado             |     |Member               |
|     |Mr. Leonard G. 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 after being medically evacuated
to a rear area, he was given a PH at the aid stations.  However, no orders
followed and he really did not care about it until the last few years.

3.  The applicant provides a two self-authored letters, two third-party
witness statements and 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 18 December 1970.  The application submitted in this case
is dated
5 January 2005.

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 3-year statue 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 was inducted in the Regular Army
and entered active duty on 12 February 1969.  He was trained in, awarded
and served in military occupational specialty (MOS) 11C40 (Infantry
Indirect Fire Crewman), and the highest rank he attained while serving on
active duty was sergeant (E-5).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he
served in the Republic of Vietnam (RVN) from 29 January 1970 through 16
December 1970, and that during his RVN tour, he was assigned to Company D,
1st Battalion, (Airmobile), 506 Infantry Regiment, 101st Airborne Division.
Item 40 (Wounds) of the applicant’s DA Form 20 is blank and contains no
entry indicating he was wounded in action.

5.  Item 41 (Awards and Decorations) shows that during his active duty
tenure, he earned the National Defense Service Medal (NDSM), Vietnam
Service Medal (VSM), Combat Infantryman Badge (CIB), Bronze Star Medal
(BSM), Army Commendation Medal (ARCOM), Marksman Qualification Badge with
Pistol Bar and Expert Qualification Badge with Rifle and Mortar Bars.

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 MPRJ contains a Report of Medical Examination (SF88), dated
18 December 1970, 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.  This document
contains no reference to his ever having received a battle related
wound/injury.

8.  On 18 December 1970, the applicant was honorably separated after
completing 1 year, 10 months and 7 days of active military service.  The DD
Form 214 he was issued upon his separation, as amended, indicates he earned
the following awards during his tenure on active duty:  BSM, ARCOM, Air
Medal, CIB, NDSM, VSM, Vietnam Campaign Medal with Device 1960 and 2
Overseas Bars.  The applicant authenticated his DD Form 214 with his
signature in Item 32 (Signature of Person Being Transferred or Discharged).

9.  The applicant provides a third-party witness statement for an
individual who indicates he was the applicant’s platoon leader in the RVN.
He claims the applicant was temporarily deafened and dazed by a satchel
charge explosion during an engagement in the RVN.  He also provides a third-
party statement from a second member of his platoon in the RVN.  This
individual also confirms the applicant was knocked down and became dazed
and confused as a result of a satchel charge explosion.

10.  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.
11.  Army Regulation 600-8-22 (Military Awards) prescribes Army Policy
and criteria concerning individual military awards.  Paragraph 2-8 contains
guidance on the PH.  It states, in pertinent part, that the PH is awarded
to any member who has been wounded or killed in action.

12.  The awards regulation defines a wound as an injury to any part of the
body from an outside force or agent sustained under combat conditions.  The
regulation also stipulates that 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.

13.  Paragraph 2-13 of the awards regulation contains guidance on the VSM.
It states, in pertinent part, that a bronze service star is authorized with
this award for each RVN campaign a member is credited with participating
in.

14.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit
Register) established 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, 506 Infantry
Regiment) was awarded the RVN Gallantry Cross with Palm Unit Citation and
RVN Civil Actions Honor Medal First Class Unit Citation.  It also shows
that during his RVN tour, he was credited with participation in the Vietnam
Winter-Spring 1970, Sanctuary Counteroffensive and Vietnam Counteroffensive
Phase VII campaigns.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH and the supporting
documents he provided were carefully considered.  However, there is
insufficient evidence to support his claim.

2.  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.
3.  The fact the applicant became dazed, disoriented and confused as a
result of a satchel charge explosion while serving in the RVN, as indicated
in the supporting statements he provides is not in question.  However, his
official military personnel record contains no indication that he was ever
wounded in action, treated for a combat related wound, or that he was
recommended for or awarded the PH.  His DA Form 20 is void of an entry in
Item 40 showing he was wounded in action, and the PH is not included in the
list of earned awards entered in Item 41.

4.  Further, the PH is not included in the list of awards contained on the
applicant’s 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.

5.  Finally, the applicant’s name is not included on the Vietnam Casualty
Roster, the official DA list of RVN battle causalities.  As a result,
absent some evidence of record to confirm his injuries rose to the level
necessary to support award of the PH, the regulatory burden of proof
necessary to support award of the PH has not been satisfied in this case.

6.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH now under consideration on 18 December
1970.  Therefore, the time for him to file a request for correction of any
error or injustice expired on 17 December 1973.  However, he failed to file
within the 3-year statue 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 file in this case.

7.  The record confirms that based on his RVN service and campaign
participation, the applicant is entitled to the RVN Gallantry Cross with
Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit Citation
and 3 bronze service stars with his VSM.  His record also shows he earned
the Marksman Qualification Badge with Pistol Bar and Expert Qualification
Badge with Rifle and Mortar Bars.  The omission of these awards from his
record is an administrative matter that does not require Board action.
Thus, administrative 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

___PMS_  __YM ___  ___LGH _  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 Republic of Vietnam Gallantry Cross
with Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal
First Class Unit Citation, 3 bronze service stars with his Vietnam Service
Medal, Marksman Qualification Badge with Pistol Bar and Expert
Qualification Badge with Rifle and Mortar Bars.




                                  ____Paul M. Smith_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000719                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-08-30                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1970/12/18                              |
|DISCHARGE AUTHORITY     |AR 635-200, Ch 5. . . . .               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY w/note                             |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |107.0015                                |
|2.                      |107.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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