RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          22 December 2005
      DOCKET NUMBER:  AR20050006216


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ted Kanamine                  |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Ms. Jeanette McPherson            |     |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 (Report of
Transfer or Discharge) to show award of the Purple Heart and the Vietnam
Campaign Medal.

2.  The applicant states, in effect, he received trauma to his left leg in
Vietnam when another passenger in the vehicle he was riding in reacted by
moving/jumping after hearing small arms fire and rammed the applicant's
leg.  He also states that since he sustained a wound incidental to
enemy/hostile fire and qualified for a Purple Heart, he was eligible and
earned the Vietnam Campaign Medal even though he served less than six
months in Vietnam.

3.  The applicant provides a list of supporting documentation and
additional supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors which occurred
on
19 April 1972.  The application submitted in this case is dated 14 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 entered active duty on 10 August 1969.  He served as a
legal officer in Vietnam from 13 November 1971 through 7 April 1972.  On 19
April 1972, the applicant was released from active duty.

4.  The applicant's DD Form 214 shows the National Defense Service Medal,
the Vietnam Service Medal, and the Army Commendation Medal as authorized
awards.

5.  There is no evidence in the available records which shows that the
applicant was awarded the Purple Heart or was wounded as a result of
hostile action in Vietnam.

6.  The applicant's name does not appear on the Vietnam Casualty Roster.

7.  In support of his claim for the Purple Heart, the applicant provided a
service medical record, dated 10 December 1971, which indicates he had a
varicose problem in his left leg and states, in pertinent part, "Yesterday
hit l [left] leg.  Now pain & swelling."  There is no evidence of record
which shows this injury was the result of hostile action in Vietnam.

8.  The applicant provided January 1972 service medical records which show
he was treated for varicose problems in his left leg in Vietnam.  He also
provided a 1976 medical record which indicates he had varicose veins,
predominately in his left leg, noticed first in 1969.

9.  Headquarters, XXIV Corps General Orders Number 346, dated 22 March
1972, show the applicant received the Bronze Star Medal for meritorious
service during the period November 1971 to April 1972 in Vietnam.

10.  A DD Form 215 (Correction to DD Form 214), dated 6 May 2005, shows the
applicant's DD Form 214 was amended to show award of the Vietnam Service
Medal with three bronze service stars, the Joint Service Commendation
Medal, the Republic of Vietnam Armed Forces Honor Medal First Class, the
Meritorious Unit Commendation, and the Republic of Vietnam Gallantry Cross
with Palm Unit Citation Badge.

11.  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.  The
regulation also states that when contemplating an award of this decoration,
the key issue that commanders must take into consideration is the degree to
which the enemy caused the injury.

12.  Army Regulation 600-8-22 provides, in pertinent part, for award of the
Vietnam Campaign Medal.  This medal was awarded by the Government of
Vietnam to all members of the Armed Forces of the United States for
qualifying service in Vietnam during the period 1 March 1961 through
28 March 1973.  Qualifying service included assignment in Vietnam for
6 months or more.  Qualifying service outside the geographical limits of
the Republic of Vietnam required the individual to provide direct combat
support to the Republic of Vietnam and Armed Forces.  Individuals who had
qualified for award of the Vietnam Service Medal or the Armed Forces
Expeditionary Medal and were evacuated prior to completing six months of
service due to wounds resulting from hostile action were entitled to award
of the Vietnam Campaign Medal.

DISCUSSION AND CONCLUSIONS:

1.  It appears the applicant's commanding officer decided the degree to
which the enemy caused the injury was insufficient to justify award of the
Purple Heart.  Therefore, there is insufficient evidence on which to base
award of the Purple Heart in this case.

2.  The applicant did not serve a period of qualifying service for award of
the Vietnam Campaign Medal.

3.  Orders show the applicant received the Bronze Star Medal.

4.  Records show the applicant should have discovered the alleged errors
now under consideration on 19 April 1972; therefore, the time for the
applicant to file a request for correction of any error expired on 18 April
1975.  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.

5.  Evidence shows that the applicant’s records contain an 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
outlined by the Board in paragraph 2 of the BOARD
DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

TK______  _RD____  __JM___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  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 he was awarded the Bronze Star Medal.




            ___Ted Kanamine_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050006216                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051222                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107.0015                                |
|2.                      |107.0088                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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