RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:       1 December 2005
      DOCKET NUMBER:  AR20050004505


      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. John T. Meixell               |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Richard G. Sayre              |     |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 DD Form 214 (Armed Forces of
the United States Report of Transfer or Discharge) to show award of the
Purple Heart.

2.  The applicant states that he was hit by shrapnel in the left knee
during his service in Vietnam.  He further states that he was transferred
out of Vietnam prior to receiving his Purple Heart.

3.  The applicant provides a self-authored letter and a statement from a
former Soldier who served with him in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 23 July 1976.  The application submitted in this case is dated
16 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 of the
United States on 21 June 1967.  He was trained in and awarded military
occupational specialty (MOS) 11B40 (Light Weapons Infantryman) and the
highest rank he attained while serving on active duty was sergeant (SGT)/E-
5.

4.  The applicant’s Enlisted Qualification Records (DA Form 20) shows that
he served in the Republic of Vietnam (RVN) from 3 April 1968 through 18
November 1968.  It further shows that during this RVN tour, he was assigned
to Company B, 5th Battalion, 12th Infantry Regiment, 199th Infantry
Brigade, performing duties as a radio telephone operator and automatic
rifleman.

5.  Records also show that the applicant was transferred to Company C, 1st
Battalion, I7th Infantry Division and departed Vietnam to serve in Korea
during the period 19 November 1968 to 10 April 1969 (the applicant’s DA
Form 20 incorrectly shows his departure date from Korea as 15 April 1969
instead of
10 April as shown on his DD Form 214.

6.  Item 40 (Wounds) of the applicant’s DA Form 20 contains no entry
indicating he was wounded or injured in action while serving on active
duty.  Item 41 (Awards and Decorations) lists the following awards he
earned during his active duty tenure:  National Defense Service Medal
(NDSM), Vietnam Service Medal (VSM), Combat Infantryman Badge (CIB), and
the RVN Campaign Medal with
60 Device.

7.  The applicant’s military personnel file contain three DD Forms 214
which include his military service for the periods 21 June 1967 to 10 April
1969, 28 November 1969 to 30 August 1972, and 18 January 1973 to 23 July
1976.  The Purple Heart is not listed as an authorized award of any of
these documents.

8.  The applicant’s military personnel file does not contain any medical
treatment documents and the applicant’s medical records were not available
for review.
There are no General Orders which show the applicant was treated for wounds
sustained as a result of hostile action.

9.  On 10 April 1969, the applicant was honorably separated after
completing
1 year, 10 months, and 20 days of active military service.  The DD Form 214
he was issued shows, in Item 24 (Decorations, Medals, Badges,
Commendations, Citations and Campaign Ribbons Awarded or Authorized), that
he earned the following awards during his active duty tenure:  NDSM, VSM,
RVN Campaign Medal, the CIB, the Armed Forces Expeditionary Medal, the
Expert Marksmanship Badge and an Overseas Service Bar.  The Purple Heart is
not included in the list of awards and the applicant authenticated this
document with his signature in Item 32 (Signature of Person Being
Transferred or Discharged).

10.  The applicant provided a self-authored statement in which he explained
that he was wounded in his left knee during the Tet Counteroffensive in
Vietnam in 1968.  He further stated that the paperwork was submitted for
his Purple Heart at Long Beh Base Camp.  He explained that he was initially
assigned to the 199th Light Infantry Brigade and was later transferred to
7th Infantry Battalion which is the unit to which he was assigned to when
he received mortar shrapnel to his left knee.

11.  The applicant provides a statement from a Soldier who served with him
in the RVN.  This individual states that in 1968, the applicant was wounded
in his left leg while the unit was under mortar attack in Vietnam.

12.  In connection with the processing of this case, the Department of the
Army Vietnam Casualty List was reviewed.  The applicant’s name is not
listed as an RVN casualty on this roster

13.  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.

14.  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.  Table B-1
contains a list of campaigns and it shows that during the applicant’s
tenure of assignment in the RVN, he was credited with participating in the
Counteroffensive Phase IV, Counteroffensive Phase V, and the
Counteroffensive Phase VI 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, 5th Battalion, 12th Infantry, was awarded the RVN Civil
Actions Honor Medal First Class Unit Citation based on Department of the
Army General Orders 51, dated 1971.

16.  Department of the Army General Order Number 8, dated in 1974,
authorized the award of the Republic of Vietnam Gallantry Cross with Palm
Unit Citation to all personnel assigned to the RVN from 8 February 1962
through 28 March 1973.

17.  Army Human Resources Command Message (Date Time Group 9 February 2004)
published implementing instructions for award of the Korea Defense Service
Medal.  This message specified criteria for the award of the Korea Defense
Service Medal as follows:  a) service members of the armed forces must have
served in support of the defense of the Republic of Korea from 28 July 1954
through a future date to be determined by the Secretary of Defense;  b) the
area of eligibility encompasses all land area of the Republic of Korea, and
the contiguous water out to 12 nautical miles, and all air spaces above the
land and water areas;  c) service members must have been mobilized with
units or assigned or attached to units operating in the area of eligibility
and have been physically deployed in the area of eligibility for 30
consecutive or 60 non-consecutive days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the Purple Heart and the
supporting statement he provided were carefully considered.  However, by
regulation, in order to award the Purple Heart it is necessary to establish
that a Soldier was wounded as a result of enemy action, that the wound
required treatment by a medical officer, and that the record of medical
treatment was made a matter of official record.

2.  The evidence of record provides no confirmation that the applicant was
ever wounded or injured in action, or that he was ever recommended for or
awarded the Purple Heart.  Item 40 of his DA Form 20 is blank and there are
no documents or orders on file which would indicate that he was ever
recommended for or awarded the Purple Heart.

3.  The applicant’s DD Form 214 does not include the Purple Heart in the
list of authorized awards and he authenticated this document with his
signature, thereby verifying that the information it contained, to include
the list of authorized awards, was correct at the time the separation
document was prepared and issued.  Additionally, the applicant’s name is
not listed on the Vietnam Casualty Roster.

4.  The veracity of the statement provided by the former Soldier that the
applicant was injured during a mortar attack in Vietnam is not in question.
 However, absent any evidence to corroborate that the wound or injury was
the result of enemy action, the regulatory burden of proof necessary to
support award of the Purple Heart has not been satisfied in this case.
Therefore, there is insufficient basis to award the Purple Heart.

5.  The evidence does shows that based on his RVN service and campaign
participation, the applicant is entitled to the RVN Gallantry Cross with
Palm Unit Citation, the RVN Civil Actions Honor Medal First Class Unit
Citation, and three bronze service stars.

6.  The evidence of record in this case confirms the applicant served in
Korea from 19 November 1968 to 10 April 1969.  As a result, it would be
appropriate to add the KDSM to his DD Form 214 at this time.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 July 1976; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
22 July 1979.  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.

8.  Evidence of record shows that the applicant’s record contains
administrative error which does 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 outline by the Board in paragraph 3 of the BOARD
DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JTM __  ___ML __  __RGS   _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that it is in the interest of justice to excuse
failure to timely fine.

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.

3.  The Board determined that administrative errors in the record 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
his entitlement to the Korea Defense Service Medal, the RVN Gallantry Cross
with Palm Unit Citation, the RVN Civil Actions Honor Medal First Class, and
three bronze service stars to be worn on his Vietnam Service Medal; and by
providing him a correction to his separation document that includes these
changes.





                                  _____John T. Meixell_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004505                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051201                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY/w-note                             |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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