RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 December 2005
      DOCKET NUMBER:  AR20050004090


      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. Prevolia A. Harper            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James C. Hise                 |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |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 correction of his records to show award of the
Purple Heart and the Meritorious Service Medal.

2.  The applicant states, in effect, that he received an injury to his
right foot during the Tet Offensive in Vietnam.  He further states that he
was presented with the Purple Heart.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from Active Duty) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or which
occurred on 31 December 1978.  The application submitted in this case is
dated 7 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 was inducted into the Army and entered
active duty on 3 December 1958.  He was trained in and awarded military
occupational specialty (MOS) 63C (Tracked Vehicle Mechanic).  He was later
trained as a cook and served the majority of his active duty tenure in the
MOS 93B (Cook).  The highest rank he attained while serving on active duty
was staff sergeant.

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he
served in the RVN from 10 October 1967 through 9 October 1968.  It further
shows that during his RVN tour, he was assigned to Headquarters Troop, 3rd
Squadron, 17th Cavalry, Division, performing duties in MOS 94B as the First
Cook.



5.  Item 40 (Wounds) of the DA Form is blank and contains no entry
indicating the applicant was wounded in action, and item 41 (Awards and
Decorations) does not include the Purple Heart among the earned awards
listed.

6.  The applicant served continuously on active duty and on 31 December
1978, he retired from the Army after completing 20 years and 28 days of
active military service.

7.  The DD Form 214 the applicant was issued upon his retirement shows he
earned the following awards during his active duty tenure:  National
Defense Service Medal, Good Conduct Medal (5th Award), Vietnam Service
Medal with four bronze service stars, Vietnam Campaign Medal, Vietnam
Gallantry Cross with Palm Unit Citation, 2 Overseas Service Bars, Expert
Marksmanship Badge (M-16), Sharpshooter Marksmanship Badge (M-14).  The
applicant’s awards are continued in Item 27 (Remarks) and show he also
earned the Meritorious Service Medal.

8.  The applicant’s name is not listed on the Republic of Vietnam Casualty
Roster.

9.  The applicant’s record contains a Clinical Record Cover Sheet from the
12th Evacuation Hospital, dated 29 February 1968.  This document shows the
applicant was injured while running to his bunker in a hostile forces
mortar attack in the company area of Cu Chi, Republic of Vietnam on 29
February 1968.  The applicant’s diagnosis is shown as “Avulsion [the
tearing away of part of a structure], skin, left toe, no nerve or artery
involvement.”

10.  The Clinical Record Cover Sheet also shows that the applicant’s injury
was in the line of duty and that he was recommended for the Purple Heart,
however, it was not awarded at that station.

11.  The applicant’s record contains a DA Form 1577 (Authorization for
Issuance of Award), dated 19 July 1990, which shows the applicant was
authorized the Purple Heart.

12.  Army Regulation 800-8-22 (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 statue of limitations governing requests for
award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  By regulation, in order to support award of the Purple Heart, it is
necessary to have evidence confirming the member was wounded in action, was
treated for the wound by military medical personnel and this record of
treatment must have been made a matter official record.

2.  In this case, the evidence of record includes a Clinical Record Cover
Sheet, 12th Evacuation Hospital.  This document confirms that on 29
February 1968, the applicant was treated for a left toe injury he had
received as a result of a mortar attack by hostile forces in Vietnam.

3.  The clinical record pertaining to the applicant also shows he was
recommended for the Purple Heart; however, it was not issued at the
hospital at the time of his treatment.  As a result, it is concluded that
the regulatory burden of proof necessary to support award of the Purple
Heart has been satisfied in this case.  Therefore, the applicant is
entitled to correction of his records to show this award.

4.  The Meritorious Service Medal is shown in the Remarks portion of the
applicant’s DD Form 214 with an effective date of 31 January 1978.  It
appears this award was placed in this section due to limited space in item
26.  Therefore, there no basis for correction of his records to show this
award.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 December 1978; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on      30 December 1981.  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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__JCH __  __REB  _  __JRM __  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 showing award of the
Purple Heart for wounds received in action on 29 February 1968, while
serving in Vietnam.

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
correcting his records to show the Meritorious Service Medal.






                            _____ James C. Wise______
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004090                           |
|SUFFIX                  |                                        |
|RECON                   |20051220                                |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(GRANT PARTIAL)                         |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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