RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 December 2005
      DOCKET NUMBER:  AR20050002802


      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:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Richard G. Sayre              |     |Member               |
|     |Ms. Angela G. Love                |     |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 he be awarded the Purple Heart.

2.  The applicant states he received a head injury from a rock in August
1970.  The injury was a result of a direct engagement with the enemy.

3.  The applicant provides a letter, dated 15 July 1971, from the Veterans
Administration (VA).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 8 April 1971.  The application submitted in this case is
dated            7 February 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 4 September 1969.  He
completed basic combat training and advanced individual training and was
awarded military occupational specialty 13A (Field Artillery Basic).

4.  The applicant arrived at a replacement detachment in Vietnam on 31
January 1970.  He was assigned to Battery B, 2d Battalion, 40th Artillery,
199th Infantry Brigade on 12 February 1970.  On 5 February 1971, he was
reassigned to Battery C, 1st Battalion, 21st Artillery, 1st Cavalry
Division (Airmobile).  He departed Vietnam on 4 April 1971 after
participating in three campaigns.

5.  The applicant was released from active duty on 8 April 1971.  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
Vietnam Service Medal, the Republic of Vietnam Campaign Medal, the Bronze
Star Medal, the Army Commendation Medal, and the Army Good Conduct Medal.

6.  In response to a November 1971 VA request for a morning report search,
a 17 August 1970 Battery B, 2d Battalion, 40th Artillery morning report
indicated the applicant was hospitalized on 17 August 1970 for head
lacerations determined to be in line of duty.

6.  Item 40 (Wounds) on the applicant's DA Form 20 (Enlisted Qualification
Record) does not show he was wounded.  His name is not listed on the
Vietnam Casualty Roster.

7.  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.

8.  Army Regulation 600-8-22 provides for the wear of one bronze service
star on the appropriate service medal, to include the Vietnam Service
Medal, for each campaign participation credit.

9.  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 2d Battalion, 40th Artillery, it was cited
for award of the Republic of Vietnam Gallantry Cross with Palm Unit
Citation for the period 19 June 1968 through      31 July 1970 by
Department of the Army General Orders (DAGO) Number 51 dated 1971.

10.  Department of the Army Pamphlet 672-3 also shows that, at the time of
the applicant's assignment to the 2d Battalion, 40th Artillery, it was
cited for award of the Republic of Vietnam Civil Actions Honor Medal, First
Class, Unit Citation for the period 12 December 1966 through 31 August 1970
by DAGO Number 51, dated 1971.

DISCUSSION AND CONCLUSIONS:

1.  While there is evidence of record to verify the applicant received a
head injury that was determined to be in line of duty, there is no evidence
of record to show the injury was the result of enemy action.  Therefore,
there is insufficient evidence on which to base award of the Purple Heart.

2.  The applicant was assigned to a unit during a period of time that unit
was awarded 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.

3.  The applicant was credited with participating in three campaigns.
Therefore, his DD Form 214 should be amended to show he is authorized the
Vietnam Service Medal with three bronze service stars.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 April 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 7 April 1974.  The applicant did not file within the 3-year
statute of limitations; however, it is appropriate to waive failure to
timely file based on the fact there is no statute of limitations on
requests for award of the Purple Heart.

5.   Evidence shows that the applicant’s records contain administrative
errors which do 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 2 of the BOARD DETERMINATION/RECOMMENDATION section
below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jtm___  __rgs___  __agl___  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.  The Board determined that administrative errors in the records of the
individual concerned should be corrected.  Therefore, the Board requests
that the CMSD-St. Louis administratively correct the records of the
individual concerned by amending his DD Form 214 to add 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
authorized to wear three bronze service stars on the Vietnam Service Medal.





                                  __John T. Meixell_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002802                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |107.0015                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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