RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           6 December 2005
      DOCKET NUMBER:  AR20050007129


      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             |
|     |Mr. Joseph A. Adriance            |     |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, correction of the rank and pay grade
listed in Item 5a (Grade, Rate or Rank) and Item 5b (Pay Grade) of his
separation document (DD Form 214); and award of the Purple Heart (PH).

2.  The applicant states, in effect, his DD Form 214 shows he was an E-3,
when in fact he was an E-5.  He also states he received wounds to his left
knee on 28 May 1967 in the Republic of Vietnam (RVN), and his wife received
a PH Certificate on him while he was still in the RVN.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 13 July 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 6 October 1966.  He was trained in, awarded and served in
military occupational specialty (MOS) 11B (Light Weapons Infantryman).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he
served in the RVN from 13 May 1967 through 12 July 1968.  During his RVN
tour, he was assigned to the following units for the periods and performing
the duties indicated:  Company A, 5th Battalion, 7th Cavalry Regiment, from
16 May through 10 June 1967, performing duties in MOS 11B as a rifleman;
and United States Army Element, Pacific Exchange (PACEX), Army and Air
Force Exchange Service (AAFES), from 11 June 1967 through 12 July 1968,
performing duties in MOS 56B as a general warehouseman and 76V as an
equipment storage specialist.

5.  Item 33 (Appointments and Reductions) of the applicant’s DA Form 20
shows he was promoted to specialist four/E-4 (SP4/E-4) on 23 August 1967,
and that this is the highest rank he attained while serving on active duty.
 Item 40 (Wounds) contains the entry “shell fragment in left knee, 23 May
67”.  Item 41 (Awards and Decorations) does not include the PH in the list
of earned awards entered.  His Military Personnel Records Jacket (MPRJ)
contains no orders, or other documents indicating he was ever wounded in
action, or awarded the PH, and there are no medical treatment records on
file indicating he was ever treated for a combat related wound.  It is also
void of any orders or documents showing he was ever recommended for, or
promoted to a grade above SP4/E-4 while serving on active duty.

6.  On 13 July 1968, the applicant was honorably separated after completing
a total of 1 year, 9 months, and 8 days of active military service.  The DD
Form 214 he was issued contains the entry “SP4(T) in Item 5a and the entry
“E-4” in Item 5b.  Item 24 (Decorations, Medals, Badges, Commendations,
Citations and Campaign Ribbons Awarded or Authorized) shows he earned the
following awards during his active duty tenure:  National Defense Service
Medal and Vietnam Service Medal (VSM).

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.  Army Regulation 600-8-19 prescribes the Army’s enlisted promotion
policy.  Chapter 3 contains guidance on the semi-centralized promotion
process for the pay grades of E-5 and E-6.  It states, in pertinent part,
that filed operations include a promotion board appearance, promotion point
calculation, promotion list maintenance, and the final execution of the
promotions.  Headquarters, Department of the Army (HQDA) operations
includes establishing monthly promotion cutoff scores and publishing the
monthly E-5/E-6 promotion selection by-name list.  Field grade commanders
in units authorized a commander in the grade of lieutenant colonel or
higher have promotion authority to the grades of
E-5 and E-6 using the established semi-centralized system.  Although the
promotion regulation and system in effect at the time the applicant served
was different, it still required selection by a local promotion board and
promotion by the proper authority.

9.  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 the PH is awarded to any member who has been wounded or killed
in action.
10.  The awards regulation defines a wound as an injury to any part of the
body from an outside force or agent sustained under conditions defined by
this regulation.  In order to support awarding a member the PH, it is
necessary to establish that the wound, for which the award is being made,
required treatment by a medical officer.  This treatment must be supported
by records of medical treatment for the wound or injury received in action,
and must have been 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.  A silver service star is used in lieu of 5 bronze service stars to
denote participation n five campaigns.

12.  Table B-1 of the same regulation contains a list of RVN campaigns.  It
shows that during the applicant’s tenure of assignment, campaign credit was
awarded for the following five campaigns:  Vietnam Counteroffensive Phase
II; Vietnam Counteroffensive Phase III; TET Counteroffensive 1968; Vietnam
Counteroffensive Phase IV; and Vietnam Counteroffensive Phase V.

13.  Paragraph 9-19 of the same regulation contains guidance on award of
the
RVN Campaign Medal.  It states, in pertinent part, that it is awarded with
the 1960 Device for six months of service in the RVN completed between 1
March 1961 and 28 March 1973.

14.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit
Register) establishes the eligibility of individual members for campaign
participation credit, assault landing credit, and unit citation badges
awarded during the Vietnam Conflict.  It confirms that during his tenure of
assignment in the RVN, the applicant’s units (5th Battalion, 7th Cavalry
Regiment and PACEX) earned the Meritorious Unit Commendation, RVN Civil
Actions Honor Medal First Class Unit Citation, and RVN Gallantry Cross with
Palm Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that the rank and pay grade listed in Item 5a and
Item 5b of his DD Form 214 is in error was carefully considered.  However,
the applicant’s record confirms he was promoted to the rank and pay grade
of SP4/E-4, which is the rank and pay grade entered on the DD Form 214, on
23 August 1967, and that this is the highest rank he attained while serving
on active duty.

2.  Absent any evidence of record, or independent evidence showing the
applicant was ever recommended for, or promoted to a higher grade by proper
authority while serving on active duty, there is an insufficient
evidentiary basis to change the rank and pay grade currently entered on his
DD Form 214.

3.  Although there is an entry in Item 40 of the applicant’s DA Form 20
that indicates he received a shell fragment wound on 23 May 1967, his
record is void of any entries or documents that show he received this wound
as a result of enemy action.  Further, Item 41 of his DA Form 20 does
include the PH in the list of awards entered, which could have been
expected had the wound been combat related given the Item 40 entry.

4.  The PH is also not included in Item 24 of 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 on the separation document, to include the list of awards was
correct at the time it was prepared and issued.  Finally, the applicant’s
name is not included on the Vietnam casualty roster, the official DA list
of RVN battle casualties.  Absent any evidence (PH awards orders, record
entries, documents confirming he was wounded in action and/or treated for a
combat related wound, eye-witness statements, etc), 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 the grade entered on his DD Form 214 and award of the
PH now under consideration on 13 July 1968, the date of his separation from
active duty.  Therefore, the time for him to file a request for correction
of any error or injustice expired on 12 July 1971.  However, 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 record confirms that based on his RVN service and campaign
participation, the applicant is entitled to the RVN Campaign Medal with
1960 Device, Meritorious Unit Commendation, RVN Gallantry Cross with
 Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit
Citation
and 1 silver service star with his VSM.  The omission of these awards an
administrative matter that does not require Board action.  As a result, the

Case Management Support Division (CMSD), St. Louis, Missouri will
make the necessary corrections as outlined in paragraph 3 of the
BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___BPI__  ___DWS_  __EEM__  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 determined the applicant’s record should be administratively
corrected.  Therefore, it requests that the CMSD-St. Louis administratively
correct the records of the individual concerned to show his entitlement to
Republic of Vietnam Campaign Medal with 1960 Device, Meritorious Unit
Commendation, Republic of Vietnam Gallantry Cross with Palm Unit Citation,
Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation,
and
1 silver service star with his Vietnam Service Medal; and by providing him
a corrected separation document that includes these awards.




            ____Bernard P. Ingold_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050007129                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/12/06                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1968/07/13                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |O/S Rtn                                 |
|BOARD DECISION          |DENY with Admin Note                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  310  |131.0000                                |
|2.  61                  |107.0061                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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