RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         29 November 2005
      DOCKET NUMBER:  AR20050007190


      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 Foskye                 |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 never informed that one of his
men accidentally shot him.  He states he was on guard duty at Ben You Air
Force Base in the Republic of Vietnam (RVN) and while standing outside by
his bunker with five other guards, shots were fired.  He claims he went
down and discovered he had been shot in the stomach.  He was taken to the
hospital and treated, where the doctor asked him if they were at war, after
which he was shipped to a hospital in Japan for further treatment.  He
claims he was getting ready to ship home when a Lieutenant, Sergeant, and
Captain came into the ward handing out medals and ribbons and when they
came to his bed, he was given the PH to wear home on his uniform.  He
claims they told him the paper work would follow. He further states that he
was shipped to Womack Army Hospital, Fort Bragg, North Carolina to clear
port and go home, and the PH documentation was not there and as a result,
the PH was not included on DD Form 214.

3.  The applicant provides a Self-Authored Letter and a Statement of
Medical Examination and Duty Status (DA Form 2173) in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 27 September 1971.  The application submitted in this case
is dated
12 May 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 initially enlisted in the Regular Army
and entered active duty on 16 October 1968.  He was trained in and awarded
military occupational specialty (MOS) 11D (Armor Intelligence Specialist).



4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he
served in the RVN from 7 January through 17 August 1971.  During his RVN
tour, he was assigned to Company B, 1st Battalion, 8th Cavalry Regiment,
1st Cavalry Division, from 22 January through 11 March 1971; and to Troop
C,
3rd Squadron, 5th Cavalry Regiment, 9th Infantry Division from 22 March
through 7 August 1971.

5.  On 8 August 1971, the applicant was medically evacuated to Camp Zama,
Japan.

6.  Item 40 (Wounds) of the applicant's DA Form 20 is blank.  Item 41
(Awards and Decorations) shows he earned the following awards during his
active duty tenure:  National Defense Service Medal (NDSM); Vietnam Service
Medal (VSM); Combat Infantryman Badge (CIB); Bronze Star Medal (BSM); Army
Commendation Medal (ARCOM); and Expert Qualification Badge with Rifle Bar.
The PH is not included in the list of authorized awards entered.

7.  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.

8.  The MPRJ does include a copy of Headquarters, 1st Infantry Brigade,
5th Infantry Division General Orders (GO) Number 901, dated 4 June 1971.
These orders awarded the applicant the BSM with First Oak Leaf Cluster, for
meritorious service in connection with military operations against a
hostile force in the RVN from January 1971 through August 1971.

9.  On 27 September 1971, the applicant was honorably separated after
completing a total of 2 years and 29 days of active military service.  The
separation document (DD Form 214) he was issued at that time shows he
earned the following awards:  NDSM; CIB; VSM; BSM; and ARCOM.

10.  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.

11.  The applicant provides a Statement of Medical Examination and Duty
Status (DA Form 2173).  This document shows while on bunker guard another
Soldier in the bunker was cleaning his weapon and accidentally fired his
weapon wounding the applicant in the buttock.

12.  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.

13.  Paragraph 2-13 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.

14.  Paragraph 9-19 contains guidance on the RVN Campaign Medal.  It
states, in pertinent part, that it was awarded with the 1960 Device for six
months of service in the RVN served between 1 March 1961 to 28 March 1973.


15.  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 units were awarded the RVN Gallantry Cross with
Palm Unit Citation.  This source publication further shows that he was
credited for participating in the Vietnam Counteroffensive Phase VII
campaign.

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.  The veracity of the applicant’s claim that he received a wound while
serving in the RVN is not in question.  However, there are no orders, or
other documents on file in the applicant’s MPRJ indicating that his wound
was received as a direct result of, or was caused by enemy action, and the
medical treatment record he provides indicates he was wounded accidentally
by another Soldier who was cleaning his weapon.  His record is void of any
medical treatment records showing he was ever treated for a combat related
wound or injury.

3.  Further, 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, and the PH is not included in the list of awards contained on his
DA Form 20 or his DD Form 214.  Therefore, 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 now under consideration on 27 September 1971.  Therefore, the
time for him to file a request for correction of any error or injustice
expired on
26 September 1974.  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.

5.  The record does show that based on his RVN service and campaign
participation, the applicant is entitled to the RVN Campaign Medal with
1960 Device, RVN Gallantry Cross with Palm Unit Citation, BSM with
1st Oak Leaf Cluster, Expert Qualification Badge with Rifle Bar, and 1
bronze service star 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:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___SK  __  ___MHM   ___LMD    DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented related to award of
the Purple Heart 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 following awards:  1st Oak
Leaf Cluster with his Bronze Star Medal; Republic of Vietnam Campaign Medal
with 1960 Device; Republic of Vietnam Gallantry Cross with Palm Unit
Citation; Expert Qualification Badge with Rifle Bar; and 1 bronze service
star with his Vietnam Service Medal; and by providing him a correction to
this separation document that includes these changes.




                                  ____Stanley Kelley _______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050007190                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-11-29                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1971/09/27                              |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |107                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]