RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           23 November 2005
      DOCKET NUMBER:  AR20050003901


      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. John N. Slone                 |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Mr. Larry J. Olson                |     |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, he received a shrapnel wound to his
left leg for which he was awarded the PH, but it was never added to his
separation document (DD Form 214).

3.  The applicant provides the following documents in support of his
application:   DD Form 214; Correction to DD Form 214 (DD Form 215);
Medical Treatment Record; and Internet Printouts on Unit History and the
PH.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 28 September 1974.  The application submitted in this
case was received on 17 March 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’s record shows he initially enlisted in the Regular Army
and entered active duty on 6 July 1964.  He was trained in and awarded
military occupational specialty (MOS) 94B (Cook).  On 6 August 1965, he was
honorably discharged for the purpose of immediate reenlistment, and on 7
August 1965, he reenlisted for six years.

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows, in
Item 33 (Appointments and Reductions), that he was promoted to specialist
four (SP4) on 10 November 1967, and this was the highest rank he attained
while serving on active duty.

5.  The applicant’s DA Form 20 also shows he served in the Republic of
Vietnam (RVN) from 11 September 1967 through 22 July 1968.  During his RVN
tour, he was assigned to Headquarters and Headquarters Company (HHC), 2nd
Battalion, 3rd Infantry Regiment, 199th Infantry Brigade, performing duties
in MOS 94B as a cook.

6.  Item 40 (Wounds) of the applicant’s DA Form 20 is blank and Item 41
(Awards and Decorations) shows that during his active duty tenure, he
earned the following awards:  National Defense Service Medal (NDSM);
Vietnam Service Medal (VSM); RVN Campaign Medal; Valorous Unit Award (VUA);
and Sharpshooter Qualification Badge with Rifle Bar.

7.  On 28 September 1974, the applicant was separated under other than
honorable conditions in lieu of trial by court-martial under the provisions
of chapter 10, Army Regulation 635-200.  The DD Form 214 he was issued does
not include the PH in the list of awards contained in Item 26 (Decorations,
Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or
Authorized).  The applicant authenticated this document with his signature
on the date of his separation.

8.  On 5 May 1978, an Army official, a brigadier general, responded to an
inquiry from a Veterans’ rights counselor regarding the applicant’s
entitlement to the PH. The inquiry included a copy of a military medical
treatment record on the applicant.  This Army official confirmed that the
medical treatment record provided did not confirm the applicant received a
wound in action against the enemy.

9.  The applicant provides a medical treatment record, dated 20 February
1968, that indicates a superficial fragment was noted just to the right of
midline about bridge of nose position.  The treatment record gives no
indication this wound was received as a direct result of, or that it was
caused by enemy action.

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 casualty list.

11.  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. A wound is defined 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.

12.  Paragraph 2-13 of the awards regulation contains guidance on award of
the Vietnam Service Medal and it states, in pertinent part, that a bronze
service star is authorized with this award for each campaign a member is
credited with participating in while serving in the RVN.

13.  Table B-1 of the awards regulation contains a list of RVN campaigns,
and it shows that during his tenure of assignment, the applicant was
credited with participating in the Vietnam Counteroffensive Phase III, TET
Counteroffensive, Vietnam Counteroffensive Phase IV, and Vietnam
Counteroffensive Phase V campaigns.

14.  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 (2nd Battalion, 3rd Infantry
Regiment) was awarded the VUA, 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.  The medical treatment record provided by the applicant, confirms the
applicant was treated for a superficial fragment wound to the nose.
However, it does not indicate, or verify that this wound was received as a
direct result of, or was caused by enemy action.  The fact his treatment
for this wound was documented is an indication that his chain of command
did not believe the condition was combat related and did not support award
of the PH.

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.  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.  His signature on this
document, 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, his name is not
included on the Vietnam Casualty Roster, the official DA list of RVN battle
casualties.

4.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH now under consideration on 28
September 1974.  Therefore, the time for him file a request for correction
of any error or injustice expired on 27 September 1977.  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.

5.  The record confirms that based on his RVN service and campaign
participation, the applicant is entitled to the VUA, RVN Gallantry Cross
with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit
Citation and
4 bronze service stars with his VSM.  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

___JNS__  __PHM__  ___LJO__  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 PH.
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,  Republic of Vietnam Civil Actions Honor
Medal First Class Unit Citation, and 4 bronze service stars with his
Vietnam Service Medal; and by providing him a correction to his separation
document that includes these awards.




            ____John N. Slone_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050003901                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/11/23                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1974/09/28                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY with Adm Note                      |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  61   |107.0015                                |
|2.  46                  |107.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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