RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         22 November 2005
      DOCKET NUMBER:  AR20050006475


      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. Thomas A. Pagan               |     |Chairperson          |
|     |Mr. Eric N. Anderson              |     |Member               |
|     |Mr. Joe R. Schroeder              |     |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 was wounded while serving in
the Republic of Vietnam (RVN), but was never recommended for, or awarded
the PH.

3.  The applicant provides Third-Party witness statement in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 31 March 1970.  The application submitted in this case is
dated
20 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 records show he initially enlisted in the Regular Army
and entered active duty on 28 June 1965.  He was trained in and awarded
military occupational specialty (MOS) 11B (Light Weapons Infantryman).

4.  On 29 June 1966, he was honorably discharged for the purpose of
immediate reenlistment.  On 30 June 1966, he reenlisted for four years, and
for an overseas assignment to United States Army Europe.  He was retrained
in, awarded and served in MOS 64B (Vehicle Driver).

5.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he
served in the RVN from 8 December 1967 through 6 December 1968.  During his
RVN tour, he was assigned to Company A, 101st Aviation Battalion
(Airborne), from
2 November 1967 through 1 December 1968, performing duties in MOS 64C as a
truck master.  Item 40 (Wounds) 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 31 March 1970, the applicant was honorably separated after
completing a total of 4 years, 9 months and 3 days of active military
service.  The separation document (DD Form 214) he was issued at that time
shows he earned the following awards:  National Defense Service Medal
(NDSM), Vietnam Service Medal (VSM) with 1 silver service star; RVN
Campaign Medal; Parachutist Badge; Air Medal; Army Commendation Medal;
Bronze Star Medal, and Expert Qualification Badge with Rifle Bar.  The
applicant authenticated the DD Form 214 with his signature on the date of
his separation.

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.  The applicant provides a third party statement from an individual who
indicates he was the crew chief on a helicopter on which the applicant was
a gunner.  He states that while the applicant was on a routine re-supply
flight mission, the aircraft came under intense automatic small arms fire,
which resulted in the pilot and the applicant receiving minor shrapnel
wounds.  He claims the applicant received a small metal fragment in his
neck, for which he did not seek medical treatment.

10.  On 19 February 1970, a Report of Medical Examination (SF 88) and
Report of Medical History (SF 89) were completed on the applicant for
separation purposes.  These documents are void of any indication that the
applicant ever sustained a neck wound.

11.  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.

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 (101st Aviation Battalion) was awarded the
RVN Gallantry Cross with Palm Unit Citation.
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, 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 that he was ever 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.

3.  In addition, the applicant’s name is not included on the DA Vietnam
Casualty Roster, the official DA list of RVN battle casualties.  Item 40 of
his DA Form 20 is blank, indicating he was never wounded or injured in
action.  Further, the PH is not included in the list of award contained on
his DD Form 214, which he authenticated with his signature on the date of
his separation.  In effect, his signature was his verification that the
information contained on the separation document, to include the list of
awards, was correct at the time it was prepared and issued.

4.  The veracity of the applicant’s claim of entitlement to the PH and of
the information contained in the third-party statement is not in question.
However, absent any evidence of record to corroborate this information, or
that shows the applicant was ever wounded in action, or 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.

5.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH now under consideration on 31 March
1970.  Therefore, the time for him to file a request for correction of any
error or injustice expired on 30 March 1973.  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.

6.  The evidence does confirm that based on his RVN service, the applicant
is entitled to the RVN Gallantry Cross with Palm Unit Citation.  The
omission of this award 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:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___TAP__  ___ENA    ___JRS_  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 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 to show his entitlement to the Republic of Vietnam
Gallantry Cross with Palm Unit Citation, and by providing him a correction
to his separation document that include this change.




                                  _____Thomas A. Pagon_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050006475                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-11-22                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1970/03/31                              |
|DISCHARGE AUTHORITY     |AR 635-200. . . . .                     |
|DISCHARGE REASON        |Chapter 5                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |107                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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