RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 August 2005
      DOCKET NUMBER:  AR20050003374


      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. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 award of the Purple Heart.

2.  The applicant states, in effect, that he wants his service record
corrected to show he is entitled to award of the Purple Heart.

3.  The applicant provides a self-authored statement, dated 18 January
2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 11 September 1967, the date of his injuries.  The application
submitted in this case is dated 8 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 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 enlisted in the Regular Army on 24 October 1966.  After
completion of basic combat training and advanced individual training, the
applicant was awarded military occupational specialty 63H (Auto Repairman).

4.  On 31 May 1967, the applicant was assigned to Company B, 62nd Engineer
Battalion (Construction) [Vietnam].

5.  The applicant's service records show that he suffered burns and
injuries when the earth moving machine he was riding in, on 11 September
1967, caught fire.

6.  A review of the applicant's DA Form 20 (Enlisted Qualification Record)
shows there is not an entry in Item 40 (Wounds).  Entries in Item 41
(Awards and Decorations) show award of the National Defense Service Medal
and Vietnam Service Medal.

7.  The applicant's record contains correspondence from a Member of
Congress on behalf of the applicant, concerning the applicant's entitlement
to award of the Purple Heart for the injuries he sustained in Vietnam on 11
September 1967, along with a letter from The Adjutant General of the Army,
dated 10 June 1968.

8.  The applicant's DD Form 214 (Armed Forces of the United States Report
of Transfer or Discharge), with an effective date of 8 August 1969, shows
that he was awarded the National Defense Service Medal, the Vietnam Service
Medal, the Vietnam Campaign Medal with 60 Device, and the Expert (M-14)
Rifle Marksmanship Badge.

9.  The applicant submitted a self-authored statement which states, in
effect, that after the incident when he was in the hospital, he was told by
another Soldier that a hole from a small caliber projectile was found in
the fuel tank of the earth-mover.  The applicant asserts that this hole was
made by a tracer round and could not be construed to be an accident.

10.  The applicant's records contain documentation relating to his request
to the ABCMR for correction of his military records to show retirement by
reason of physical disability, including the Transcript of Hearing, dated
28 April 1971.

11.  There is no evidence in the applicant's personnel service records or
DD Form 214 that show he is entitled to the Purple Heart.  There is also no
evidence in the applicant's service records that he received the first
award of the Good Conduct Medal, or that he was disqualified by his chain
of command from receiving the Good Conduct Medal.  Further review of the
applicant's personnel records indicates that he is also entitled to
additional awards that are not shown on his DD Form 214.

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent
part, that the Purple Heart is awarded for a wound sustained as a result of
hostile action.  Substantiating evidence must be provided to verify that
the wound was the result of hostile action, the wound must have required
treatment, and the medical treatment must have been made a matter of
official record.  There is no statute of limitations governing requests for
award of the Purple Heart.

13.  Army Regulation 600-8-22 provides that the Good Conduct Medal is
awarded to individuals who distinguish themselves by their exemplary
conduct, efficiency and fidelity during a qualifying period of active duty
enlisted service.  This period is 3 years, except in those cases when the
period for the first award ends with the termination of a period of Federal
military service of less than
3 years, but more than 1 year.  Although there is not automatic entitlement
to the Good Conduct Medal, disqualification must be justified.
14.  Army Regulation 600-8-22, Appendix B (Campaigns, Service Requirements,
and Inscriptions Prescribed for Streamers) lists campaigns during the
Vietnam Conflict.  This document shows that, at the time of the applicant's
assignment to the 62nd Engineer Battalion (Construction), it participated
in the Vietnam Counteroffensive Phase II and Vietnam Counteroffensive Phase
III; a total of two campaigns.

15.  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 the unit to which the applicant
was assigned, 62nd Engineer Battalion (Construction), was cited for award
of the Republic of Vietnam Gallantry Cross with Palm Unit Citation by
Department of the Army General Order Number 8, dated 1974.

16.  Department of the Army Pamphlet 672-3 also shows the applicant is
entitled to award of the Republic of Vietnam Civil Actions First Class Unit
Citation, for the period 3 August 1967 through 9 February 1970, by
Department of the Army General Orders Number 43, dated 1970.

17.  The applicant's DD Form 214 does not show award of the Good Conduct
Medal, two bronze service stars for the Vietnam Service Medal, the Republic
of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of
Vietnam Civil Actions First Class Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to award of the Purple Heart
for burns and injuries sustained while riding in an earth mover in Vietnam,
on
11 September 1967.

2.  In support of his request for award of the Purple Heart, the applicant
provided a self-authored statement.  The applicant asserts that the fire in
the earth mover that caused his burns and injuries could not have been an
accident.  However, the applicant provides no evidence in support of his
assertion.

3.  A review of the letter from The Adjutant General (TAG), which responds
to the inquiry from a Member of Congress regarding applicant's entitlement
to the Purple Heart, shows that records fail to indicate that applicant was
injured as a direct result of hostile action.  In addition, it further
states that  there was no enemy activity at Long Binh (Vietnam) at that
time period, making it unlikely that the earth moving machine was
overturned by an enemy mine or booby trap. The letter concludes that the
applicant is not eligible for award of the Purple Heart.

4.  A review of the ABCMR Transcript of Hearing of the Board proceedings
show the applicant personally appeared before the Board, along with his
counsel.  During his testimony, the applicant stated, in effect, that at
the time the earth mover caught fire he was riding in it to investigate a
fluid leak.  The applicant's testimony does not include any mention of the
incident being the result of hostile enemy actions.

5.  A review of the applicant's DA Form 20 (Enlisted Qualification Record),
Item 40 (Wounds), does not contain an entry showing he was wounded in
action.

6.  Absent any evidence that shows the applicant was wounded or treated for
wounds due to hostile action, there is no basis for award of the Purple
Heart.

7.  The applicant is entitled to award of the Good Conduct Medal for the
period 24 October 1966 through 8 August 1969.

8.  Evidence of record shows that while the applicant was assigned to the
62nd Engineer Battalion (Construction), he participated in two campaigns
and the unit was awarded the Republic of Vietnam Gallantry Cross with Palm
Unit Citation and the Republic of Vietnam Civil Actions First Class Unit
Citation.  Therefore, it would be appropriate to correct his records and
annotate these awards, at this time.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 August 1969, the date of his
discharge; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 7 August 1972.  Although
the applicant did not file within the ABCMR's statute of limitations, 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.

10.  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 3 of the BOARD DETERMINATION/RECOMMENDATION section
below.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

_JRM____  _WDP__  __RLD_    GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that it was appropriate to waive the ABCMR's three
year statute of limitations in this case.

2.  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 to show award of
the Purple Heart.

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 was awarded the Good Conduct Medal, Vietnam Service
Medal with two bronze service stars, the Republic of Vietnam Gallantry
Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions
First Class Medal Unit Citation.




                                        _William D. Powers___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003374                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050802                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19690808                                |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |Permanent Disability Retired            |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |107.0015.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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