RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 October 2005
      DOCKET NUMBER:  AR20050001681


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Hubert O. Fry                 |     |Member               |
|     |Mr. Robert Rogers                 |     |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 his records be corrected to reflect he was
injured while in Vietnam while under hostile fire and that he was forced to
go back to active duty after his injury.  He also requests award of the
Purple Heart.

2.  The applicant states, in letters to the National Personnel Records
Center (NPRC) and to the Department of Veterans Affairs (DVA), that, yes,
he was just a cook, but they were in a full-blown war and cooks were
expected to run back and forth loading artillery to be fired at the enemy.
The record does not reflect what actually happened to him.  The record
should show it was not just a carton of    C-rations that fell on him but a
pallet of C-rations, weighing over a ton.  On
18 July 1968, he was riding in the back of a truck when he heard gun fire
and he got down low behind the cab of the truck.  He heard a loud
explosion.  After the truck came to a halt he looked over and saw a boot
but did not realize it was his boot.  He realized later that during the
explosion he had been hit by a pallet they were transporting on the back of
the truck.  His tibia and fibula were broken and his hip was twisted in an
awkward position.

3.  The applicant provides a letter to the NPRC dated 24 January 2005; a
letter to the DVA dated 24 January 2005; and what appears to be a Medical
Evaluation Board (MEB) Narrative Summary dated 19 December 1968.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 18 April 1969.  The application submitted in this case is
dated        24 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 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 was inducted into the Army on 2 November 1966.  He
completed basic combat training and advanced individual training and was
awarded military occupational specialty 94B (Cook).

4.  The applicant arrived in Vietnam on or about 18 February 1968 and was
assigned to Battery B, 1st Battalion, 11th Artillery, 9th Infantry
Division.  He was medically evacuated from Vietnam on or about 27 August
1968.

5.  The applicant's MEB Narrative Summary dated 19 December 1968 indicated
he was injured on 18 July 1968 [while in Vietnam] when "a carton of C-
rations fell on his left leg while riding in a truck."  He was admitted to
St. Albans Naval Hospital, New York on 4 August 1968 with a diagnosis of a
closed fracture, left tibia and fibula.  On admission he was essentially
without complaints.  At the present time (i.e., December 1968) he
complained of essentially nothing except for the presence of a long leg
cast on his left leg.  As it was felt the applicant did not have a
sufficiently healed fracture as yet and that physiotherapy would be
required in the future, and the fact he was beyond his enlistment (sic)
date, it was the opinion of the MEB that maximum benefits of
hospitalization had been received and he should be referred to a Physical
Evaluation Board (PEB) for disposition.  The applicant appeared before the
board in person, was informed of the MEB's findings, and did not desire to
submit a statement in rebuttal.

6.  The applicant remained assigned to St. Albans Naval Hospital in a
patient status until he separated.

7.  A DA Form 1361 (Recommended Finding of Physical Evaluation Board
(Informal Hearing)) dated 30 January 1969 shows that an informal PEB found
the applicant to be fit for military service.  The applicant did not concur
and demanded a formal hearing with personal appearance but, in the
Signature of Member block (dated 5 February 1969), he did not sign the
form.

8.  Another DA Form 1361 dated 30 January 1969 shows that an informal PEB
found the applicant to be fit for military service.  The applicant
concurred and waived a formal hearing of his case and, in the Signature of
Member block (dated 19 February 1969), he signed the form.  Both DA Forms
1361 indicate the applicant no longer required a cast and was ambulatory
with only minimal ankle disability.

9.  On 18 April 1969, the applicant was released from active duty upon his
expiration term of service, in pay grade E-4, after completing 2 years, 5
months, and 17 days of creditable active service with no lost time.  He had
been retained in service for 168 days for the convenience of the
Government.  His DD Form 214 (Armed Forces of the United States Report of
Transfer or Discharge) shows he was awarded the National Defense Service
Medal, the Republic of Vietnam Campaign Medal, the Vietnam Service Medal,
the Expert Marksmanship Qualification Badge with rifle bar, and one
overseas service bar.

10.  The applicant's DA Form 20 (Enlisted Qualification Record) does not
show entitlement to the Purple Heart and item 40 (Wounds) on his DA Form 20
is blank.  The applicant's name does not appear on the Vietnam Casualty
Roster.

11.  The applicant's DA Form 20 shows he received "excellent" conduct and
efficiency ratings during his period of service.  There is no derogatory
information in his records.

12.  Records show the applicant participated in three campaigns during his
assignment in Vietnam.

13.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is
awarded to any member of an Armed Force who has been wounded or killed in
any action against an enemy of the United States.  The wound must have
required treatment by a medical officer and records of medical treatment
for wounds or injuries received in action must have been made a matter of
official record.  When contemplating an award of the Purple Heart, the key
issue commanders must take into consideration is the degree to which the
enemy caused the injury.  The fact the proposed recipient was participating
in direct or indirect combat operations is a necessary prerequisite, but is
not sole justification for award.

14.  A review of the historical files of Battery B, 1st Battalion, 11th
Artillery, 9th Infantry Division at the National Archives in College Park,
MD failed to reveal the applicant was injured as a result of hostile
action.

15.  Army Regulation 600-8-22, in pertinent part, authorizes 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.

16.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign
Participation Credit Register) lists the unit awards received by units
serving in Vietnam.  This document shows that, at the time of the
applicant's assignment to the 1st Battalion, 11th Artillery, it was cited
for award of the Presidential Unit Citation for the period 7 March through
22 June 1968 by Department of the Army General Orders (DAGO) Number 60,
dated 1969.

17.  Department of the Army Pamphlet 672-3 shows that, at the time of the
applicant's assignment to the 1st Battalion, 11th Artillery, it was cited
for award of the Republic of Vietnam Gallantry Cross with Palm Unit
Citation for the period      1 December 1966 through 30 June 1968 on DAGO
Number 59, 1969.

18.  Department of the Army Pamphlet 672-3 shows that, at the time of the
applicant's assignment to the 1st Battalion, 11th Artillery, it was cited
for award of the Republic of Vietnam Civil Actions Honor Medal, First Class
Unit Citation for the period 19 December 1966 through 28 June 1969 on DAGO
Number 59, 1969.

19.  Army Regulation 672-5-1, in effect at the time, provided policy and
criteria concerning individual military decorations.  It stated the Army
Good Conduct Medal was awarded for each 3 years of continuous enlisted
active Federal military service completed on or after 27 August 1940 and,
for the first award only, upon termination of service on or after 27 June
1950 of less than 3 years but more than 1 year.  At the time, a Soldier’s
conduct and efficiency ratings must have been rated as “excellent” for the
entire period of qualifying service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been carefully considered.
Regrettably, due to the passage of time it cannot be verified that a
pallet, rather than a carton, of C-rations fell on his leg.  Nevertheless,
the injuries he sustained while in Vietnam certainly should not be, and are
not, trivialized.

2.  Also regrettably, there is no evidence to show the applicant's injuries
were the result of hostile action.  When contemplating an award of the
Purple Heart, the key issue commanders must take into consideration is the
degree to which the enemy caused the injury.  The applicant does not
contend the truck in which he was riding, or its contents, was hit by
weapons fire.  The Board presumes the commander at the scene determined his
injuries were caused by the enemy to an insufficient degree to justify
award of the Purple Heart.

3.  The applicant requested his records be corrected to show he "was forced
to go back to active duty after his injury."  His records show he was never
taken off active duty.  They also show he was retained in service for 168
days for the convenience of the Government, presumably to afford him
military hospital care.

4.  The evidence of record shows the applicant participated in three
campaigns while in Vietnam.  His records should be corrected to show he is
eligible to wear three bronze service stars on the Vietnam Service Medal.

5.  The evidence of record shows the applicant was assigned to a unit
during a period of time that unit was awarded the Presidential Unit
Citation, the Republic of Vietnam Gallantry Cross with Palm Unit Citation,
and the Republic of Vietnam Civil Actions Honor Medal, First Class Unit
Citation.  These unit awards should be added to his DD Form 214.
6.  The applicant was honorably released from active duty after completing
       2 years, 5 months, and 17 days of creditable active service in pay
grade E-4 with no lost time, no derogatory information in his records, and
conduct and efficiency ratings of all "excellent.  It appears he met the
eligibility requirements for award of the Army Good Conduct Medal.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 18 April 1969; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         18 April 1972.  The applicant did not file within the
ABCMR's 3-year statute of limitations; however, there is no statute of
limitations on requests for award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__bje___  __hof___  __rr____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial 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 by:

     a.  awarding him the Army Good Conduct Medal for the period 2 November
1966 through 18 April 1969; and

     b.  amending his DD Form 214 to add the Army Good Conduct Medal, the
Presidential Unit Citation, the Republic of Vietnam Gallantry Cross with
Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal,
First Class Unit Citation and to show he is eligible to wear three bronze
service stars on the Vietnam Service Medal.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
showing he was injured while in Vietnam while under hostile fire, that he
was forced to go back to active duty after his injury, and awarding him the
Purple Heart.




                                  __Barbara J. Ellis____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050001681                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051019                                |
|TYPE OF DISCH           |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |107.0015                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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