RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         10 January 2006
      DOCKET NUMBER:  AR20050006721


      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. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. Qawly A. Sabree               |     |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, he was wounded in action on 12 April
1966, while serving in the Republic of Vietnam (RVN).  He claims the camp
he was in was mortared and he received fragments of metal in his left knee,
and in both of his hands.  He states that he was not bleeding heavily so he
ignored the wounds so that those more seriously wounded could receive
medical attention.  He also states that while serving outside of Lai Khe,
RVN in October 1966, he was assisting other men with digging a machine gun
emplacement when he placed a stick of C-4 on the spot to aid the digging.
He states when this failed to aid the digging he preceded to place 2 more
charges on the area and set them off.  He then noticed a small metal
cylinder half uncovered in the hole and before he could inspect the object
it went off throwing him from the hole.  He claims he was bleeding from
several small wounds he received as a result of the explosion, and he was
blinded.  He claims he was then sent to Saigon to receive medical treatment
for his eyes.

3.  The applicant provides a Department of Veterans Affairs (VA) Statement
in Support of Claim and VA Rating Decision in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 18 October 1967.  The application submitted in this case
is dated
17 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 19 October 1965.  He was trained in, awarded, and served in
military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman),
and the highest rank he attained while serving on active duty was
specialist (SPC).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he
served in the RVN from 10 April 1966 through 3 April 1967.  It further
shows he was assigned to Company A, 2nd Battalion, 16th Infantry Regiment,
performing duties in MOS 11C as a gunner.  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 18 October 1967, the applicant was honorably separated after
completing a total of 2 years of active military service.  The DD Form 214
he was issued at that time shows he earned the following awards:  Vietnam
Service Medal (VSM) with 2 bronze service stars; National Defense Service
Medal (NDSM); Vietnam Campaign Medal; Combat Infantryman Badge; and
Sharpshooter Qualification Badge with Rifle 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.  During the processing of this case, a member of the Board staff also
reviewed the historical files located at the National Archives in Maryland.
 This search of the unit historical files of the unit the applicant was
assigned to in the RVN also failed to provide any evidence or indication
that he was ever recommended for or awarded the PH.

9.  The applicant provides a page from a VA Rating Decision, which
indicates he was denied service-connection for his exposure to a mine
explosion in the RVN that caused blindness to his right eye for 18 hours
due to ecchymosis of the lower lid and swelling and tenderness of the right
orbit.  This document states there was no evidence of record of a current
eye condition with treatment for sensitivity to light or loss of sight that
could be attributable to his military service.
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 (Company A, 2nd Battalion, 16th Infantry
Regiment) received the RVN Civil Actions Honor Medal First Class Unit
Citation and RVN Gallantry Cross with Palm Unit Citation.  It also confirms
that campaign participation credit was granted for the Vietnam
Counteroffensive and Vietnam Counteroffensive Phase II campaigns.

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.  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.  In addition, his name is not included on the DA Vietnam Casualty
Roster, the official DA list of RVN battle casualties, and Item 40 of his
DA Form 20 is blank, indicating he was never wounded or injured in action.
In addition, a review of the historical records maintained at the National
Archives failed to produce any evidence indicating the applicant was ever
wounded in action, or recommended for or awarded the PH.

3.  The veracity of the applicant’s claim that he suffered injury to his
eyes, fragments of metal to his left knee and both hands while in the RVN
is not in question.  However, absent any evidence of record corroborating
that he received these injuries as a result of enemy action, or that he was
ever treated for a combat related wound or injury by military medical
personnel, 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 18 October
1967.  Therefore, the time for him to file a request for correction of any
error or injustice expired on 17 October 1970.  The applicant did not 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 Civil Actions
Honor Medal First Class Unit Citation, RVN Gallantry Cross with Palm Unit
Citation, and 2 bronze service stars with his VSM.  The omission of these
awards from the applicant’s record is an administrative matter that does
not require Board action.  The Case Management Support Division (CMSD),
St. Louis, Missouri, will administratively correct the applicant’s records
to include these awards 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

___KLW _  __DED__  __QAS __  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 to show his entitlement to the Republic of Vietnam
Civil Actions Honor Medal First Class Unit Citation, Republic of Vietnam
Gallantry Cross with Palm Unit Citation, and 2 bronze service stars with
his Vietnam Service Medal; and by providing him a correction to this
separation document that includes these changes.




                                  _____Kenneth L. Wright___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006721                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/01/10                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1967/10/18                              |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |107                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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