RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         1 November 2005
      DOCKET NUMBER:  AR20050004895


      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. Yvonne Foskey                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Thomas E. O’Shaughessy        |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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, that while serving in the Republic of
Vietnam (RVN), he was wounded in action.  He claims to have been treated
for this wound by a medical corpsman (MEDIC) who was to request the PH.
However, he told the MEDIC he did not want the award.  He states that he
never considered how important the PH award would be to him and his family
in later years.  He concludes by stating that he deserves the award and it
would help him medically.

3.  The applicant provides a copy of his separation document (DD Form 214)
in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 26 October 1968.  The application submitted in this case
is dated
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 was inducted into the Army and entered
active duty on 9 November 1966.  He was trained in, awarded and served in
military occupational specialty (MOS) 05B (Radio Operator), and the highest
rank he attained while serving on active duty was sergeant (SGT).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he
served in the RVN from 27 November 1967 through 1 November 1968.  It
further shows he was assigned to Battery B, 1st Battalion, 44th Artillery
from
3 December 1967 through 29 March 1968, and to Headquarters and Headquarters
Company, 1st Battalion, 44th Artillery from 30 March 1968 through 11
October 1968.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 is blank, and Item 41
(Awards and Decorations) does not include the PH in the list of authorized
awards entered.

6.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no
orders or other documents that indicate he was ever wounded in action, or
awarded the PH.  There are also no medical treatment records on file in the
MPRJ that indicate he was ever treated for a combat related wound or
injury.

7.  On 26 October 1968, the applicant was honorably separated after
completing a total of 1 year, 11 months, and 18 days of active military
service.  The DD Form 214 he was issued at that time shows he earned the
following awards:  National Defense Service Medal (NDSM); Army Good Conduct
Medal (AGCM); Valorous Unit Award (VUA); Vietnam Campaign Medal (VCM);
Vietnam Service Medal (VSM); Presidential Unit Citation (PUC); Expert
Qualification Badge with Rifle
(M-14) Bar; Marksmanship Qualification Badge with Rifle (M-16) Bar; and
1 Overseas Bar.

8.  During the processing of this case, a member of the Board staff
reviewed the Department of the Army (DA) Vietnam Casualty Roster.  This
search failed to reveal the applicant’s name among the list of RVN battle
casualties.

9.  Army Regulation 600-8-22 of the awards regulation provides, in
pertinent part, that the PH is awarded for a wound sustained as a result of
hostile action.  In order to support award of the PH, there must be
evidence verifying the wound for which the award is being made was received
as a result of hostile action, the wound must have required treatment by
military medical personnel, and the medical treatment must have been made a
matter of official record

10.  Paragraph 2-13 of the awards regulation contains guidance on the VSM.
It states, in pertinent part, that a bronze service star is authorized with
this award for each RVN campaign a member is credited with participating
in.

11.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign
Participation Credit Register) shows that during the applicant’s tenure of
assignment in the RVN, his unit was awarded the RVN Gallantry Cross with
Palm Unit Citation, and campaign credit was granted for the Vietnam
Counteroffensive Phase III, TET Counteroffensive, Vietnam Counteroffensive
Phase IV, and Vietnam Counteroffensive Phase V campaigns.



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 award the PH it is necessary to establish that a Soldier was
wounded as a result of enemy action, that the wound required treatment by
military medical personnel and that the medical treatment was made a matter
of official record.

2.  There are no orders, or other documents on file in the applicant’s MPRJ
indicating he was ever wounded in action, or recommended for or awarded the
PH.  Further, his record is void of any medical treatment records showing
he was ever treated for a combat related wound or injury.  Item 40 of his
DA Form 20 is blank, indicating he was never wounded or injured in action,
and his name is not included on the Vietnam Casualty Roster, the official
DA list of RVN battle casualties.

3.  The veracity of the applicant’s claim of entitlement to the PH, and the
information contained in the supporting documents he provided is not in
question. However, absent any evidence of record corroborating that he
received a wound or injury as a direct result of, or that was caused by
enemy action, or that he was ever treated for a combat related wound or
injury, the regulatory burden of proof necessary to support award of the PH
has not been satisfied in this case.

4.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH now under consideration on 26 October
1968.  Therefore, the time for him to file a request for correction of any
error or injustice expired on 25 October 1971.  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 evidence of record does show that based on his RVN service and
campaign participation, the applicant is entitled to the RVN Gallantry
Cross with Palm 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 to correct.  Therefore, his records will be
corrected 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

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JEA _  __TEO __  __CAK __  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
Purple Heart.  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 award of the Republic of Vietnam Gallantry Cross with
Palm Unit Citation and 4 bronze service stars with his Vietnam Service
Medal, and by providing him a corrected separation document that includes
these awards.




                                  _____James E. Anderholm____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004895                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-11-01                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1968/10/26                              |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |Chapter 5                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |107                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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