RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         6 December 2005
      DOCKET NUMBER:  AR20050006356


      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. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Donald W. Steenfott           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 he believes he is entitled to
award of the PH for a shrapnel fragment wound he received to his forehead
while serving in the Republic of Vietnam (RVN).  He believes an
administrative error has occurred because he has never received the PH for
this injury.

3.  The applicant provides the following documents in support of his
application:
Separation Document (DD Form 214); Correction to DD Form 214 (DD Form 215);
Department of Veterans Affairs Letter and Rating Decision (VA Form 21-
6796); VA Medical Treatment Records; Chronological Record of Medical Care
(SF600); and Bronze Star Medal (BSM) Orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 8 December 1969.  The application submitted in this case
is dated 11 April 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 5 March 1968.  He was trained in, awarded, and served in
military occupational specialty (MOS) 13A (Field Artillery), and the
highest rank he attained while serving on active duty was private first
class (PFC).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he
served in the RVN from 7 December 1968 through 6 December 1969.  It further
shows he was assigned to Battery B, 6th Battalion, 29th Artillery, 4th
Infantry Division performing duties in MOS 13A as a Field Artilleryman.
Item 40 (Wounds) is blank, and Item 41 (Awards and Decorations) does not
include the PH in the list of authorized awards entered.
5.  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.

6.  On 8 December 1969, the applicant was honorably separated after
completing a total of 1 year, 9 months, and 4 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); Vietnam Campaign
Medal; Vietnam Service Medal (VSM), 2 Overseas Service Bars, Marksmanship
Qualification Badge with Rifle and Pistol Bars; and Sharpshooter
Qualification Badge with Tank Weapons Bar.  The applicant authenticated
this separation document with his signature on the date of his separation.

7.  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.

8.  The applicant provides five pages of VA medical treatment records that
indicate he sustained a shell fragment wound to the forehead in September
1969, while serving in the RVN.  He also provides a VA Rating Decision,
dated
8 April 1971, which shows he was granted service connection with a 0
percent (%) disability rating for a “superficial forehead scar with small
pinhead size of shrapnel in the subcutaneous tissue of the mid frontal
region".  However, these documents do not document the circumstances under
which the shrapnel wound was received.

9.  The applicant also provides orders awarding him the BSM for his heroic
actions on 30 October 1969.  The reason citation contained in these orders
indicates members of his unit were wounded by shrapnel, but it does not
indicate the applicant received a shrapnel wound.  He also provides an SF
600 that indicates he was struck in the mid-forehead with shrapnel on 5
November 1969; however, this medical treatment record does not indicate he
received the wound as a result of enemy action.

10.  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 in order to award a PH there must be evidence that a member was
wounded or injured as a result of enemy action.  The wound or injury for
which the PH is
being awarded must have required treatment by a medical officer; this
treatment must be supported by medical treatment records that were made a
matter of official record.

11.  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.

12.  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 Civil Actions Honor
Medal First Class Unit Citation, RVN Gallantry Cross with Palm Unit
Citation, and the Meritorious Unit Commendation (MUC).  It also confirms
that campaign participation credit was granted for the following campaigns:
 Vietnam Counteroffensive Phase VI; TET Counteroffensive 1969; Vietnam
Summer-Fall 1969; and Vietnam Winter-Spring 1970.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH and the supporting
documents he submitted 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.

2.  The veracity of the applicant’s claim that he received a shell fragment
wound to the forehead while serving in the RVN is not in question.
However, the BSM orders he provided, while indicating other members of his
unit received shrapnel wounds during this engagement with enemy forces, it
does not indicate the applicant was wounded during the 30 October 1969
action.  The SF 600 provided by the applicant shows he was treated for a
shrapnel wound to the forehead he received on 5 November 1969, six days
after the engagement with enemy forces for which he was awarded the BSM.
Further, the medical treatment record gives no indication the shrapnel
wound he received was the result of enemy action.

3.  Item 40 of the applicant’s DA Form 20 is blank, which indicates he was
never wounded in action, and the PH is not included in the list of
authorized awards contained in Item 41.  It is reasonable to presume that
had the applicant’s
5 November 1969 shrapnel wound been sustained as a result of enemy action,
an appropriate entry would have been made in Item 40, and he would have
been recommended for and awarded the PH by his chain of command.

4.  The PH is also not included in the list of awards contained on the
applicant’s DD Form 214, which he authenticated with his signature on the
date of his separation.  His signature, in effect, was his verification
that the information contained in the separation document, to include the
list of awards, was correct at the time the DD Form 214 was prepared and
issued.

5.  Finally, the applicant’s name is not included on the DA Vietnam
Casualty Roster, the official DA list of RVN battle casualties.  Therefore,
absent any evidence (record entries, PH award orders, eye-witness
statements, etc.) that corroborates that the shrapnel wound he sustained on
5 November 1969 was received as a result of enemy action, the regulatory
burden of proof necessary to support award of the PH has not been satisfied
in this case.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 December 1969.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 7 December 1972.  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.

7.  The record does show that based on his RVN service and campaign
participation, the applicant is entitled to the RVN Civil Actions Honor
Medal First Class Unit Citation, RVN Gallantry Cross with Palm Unit
Citation, Meritorious Unit Commendation, and 4 bronze service stars with
his VSM.  The omission of these awards is an administrative matter that
does not require Board action to correct.  Therefore, administrative
correction of his records will be accomplished by the Case Management
Support Division (CMSD), St. Louis, Missouri, as outlined in paragraph 3 of
the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

___BPI__  __DWS__  __EEM__  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.  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 did determine there is an administrative error in the records
of the individual that should be corrected.  Therefore, the Board requests
that the CMSD-St. Louis administratively correct the records of the
individual concerned by showing his entitlement to the Republic of Vietnam
Civil Actions Honor Medal First Class Unit Citation, Republic of Vietnam
Gallantry Cross with Palm Unit Citation, Meritorious Unit Commendation,
Sharpshooter, and 4 bronze service stars with his Vietnam Service Medal;
and by providing him a correction to this separation document that includes
these changes.






                                  ____Bernard P. Ingold____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006356                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-12-06                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1969/12/08                              |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |Overseas Returnee                       |
|BOARD DECISION          |Deny                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|                        |107                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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