RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         23 November 2005
      DOCKET NUMBER:  AR20050007936


      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. John N. Slone                 |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Mr. Larry J. Olson                |     |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 is entitled to the PH for an injury
he received during combat operations in the Republic of Vietnam (RVN) in
September 1970. He claims it is unjust that his military records do not
reflect award of the PH for wounds he received while in combat serving this
nation.  He also states that it is his belief that his numerous transfers
was the reason the PH was never awarded to him.  He concludes by stating
that he is very proud of his military service and that he did what was
asked of him and more.

3.  The applicant provides the following documents in support of his
application: Self-Authored Letter; Separation Document (DD Form 214);
Narrative Summary (SF 502); Clinical Record History Part 1 and 2 (SF
504/505); Physical Examination (SF 506); Temperature Pulse Respiration (SF
511); Consultation Sheet (SF 513); Doctor's Order (DD Form 728); Doctor's
Progress Notes
(SF 509); Nursing Notes (DD Form 640); Laboratory Reports (SF 514);
Radiographic Reports (SF 519); Clinical Record Cover Sheet (DA Form 8-275-
3); Department of Veterans Affairs (VA) Rating Decision; and VA Rating
Explanation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 15 August 1971.  The application submitted in this case is
dated
17 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 16 August 1970 through 15 August 1971.  During his
RVN tour he was assigned to the following units for the periods indicated:
B Troop,
3rd Squadron 4th Cavalry Regiment, 25th Infantry Division, from 26 August
1970 through 22 November 1970; K Troop, 3rd Squadron, 11th Armored Cavalry
Regiment, from 23 November 1970 through 11 February 1971; Headquarters and
Headquarters Company (HHC), 1st Battalion, 77th Armored Regiment,
1st Brigade, 5th Infantry Division, from 18 February 1971 through 12 June
1971; HHC, 3rd Squadron, 5th Cavalry Regiment, 1st Brigade, 5th Infantry
Division, from 13 June 1971 through 17 June 1971; and A Troop, 3rd
Squadron,
5th Cavalry Regiment, 9th Infantry Division, from 18 June 1971 through
11 August 1971.  In all of these units, he performed duties in MOS 11D as a
Scout Observer.  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.  The applicant's MPRJ contains copy of Headquarters, 1st Infantry
Brigade, 5th Infantry Division General Orders Number 1337, dated 9 July
1971.  These orders awarded him the Army Commendation Medal (ARCOM) for
meritorious service from August 1970 through July 1971.

7.  On 15 August 1971, the applicant was honorably separated after
completing a total of 2 years, 9 months and 27 days of active military
service.  The DD Form 214 he was issued shows he the following awards:
National Defense Service Medal (NDSM); Vietnam Service Medal (VSM); Combat
Infantryman Badge (CIB); RVN Campaign Medal w/60 Device; 1 Overseas Bar,
Marksmanship Qualification Badge with Rifle Bar and Sharpshooter
Qualification Badge with Rifle Bar.  The applicant authenticated this
separation document 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 numerous medical treatment records that show he
received a head injury while riding in an armored personnel carrier (APC)
on
20 September 1970.  However these documents give no indication that the
vehicle accident was a direct result of, or caused by enemy action.  On
         15 August 1971, a Report of Medical Examination (SF 88) was
completed on the applicant for separation purposes.  This document is void
of any indication that the applicant ever sustained a head injury.

10.  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 direct result of, or caused by 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.

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.  Table B-1 contains a list of RVN campaigns.  It shows that during the
applicant’s tenure of assignment, campaign credit was awarded for the
Vietnam Counteroffensive Phase VII campaign.

12.  Department of the Army General Order Number 8, dated in 1974,
authorized the award of the Republic of Vietnam Gallantry Cross with Palm
Unit Citation to all personnel assigned to the RVN from 8 February 1962
through 28 March 1973.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH and the supporting
documents he provided were carefully considered.  However, by regulation,
in order to award the PH it is necessary to establish that the wound or
injury for which the PH is being awarded was received as a direct result
of, or was caused by 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 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.  Item 40 of the applicant’s DA Form 20 is blank, indicating he was never
wounded or injured in action, and his name is not included on the Vietnam
Casualty Roster, the official DA list of RVN battle casualties.  In
addition, the PH is not listed 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 DD Form 214, to
include the list of awards, was correct at the time the separation document
was prepared and issued.

4.  The veracity of the applicant’s claim that he was injured in an APC
accident while serving in the RVN and the information contained in the
medical treatment documents he provided is not in question.  However,
absent any evidence of record corroborating that the accident he was
involved in was a direct result of, or caused by enemy action, 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 now under consideration on 15 August 1971.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 14 August 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.

6.  The evidence of record does show that the applicant was awarded the
ARCOM and that based on his RVN service and campaign participation,
he is entitled to the RVN Gallantry Cross with Palm Unit Citation and
1 bronze service star with his VSM.  The omission of these awards from his
record is an administrative matter that does not require Board action to
correct.
Therefore, his records will be corrected by the Case Management Support
Division (CMSD), St. Louis, Missouri, 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

___JNS__  ___PHM_  ___LJO_  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 that administrative error in the records of the
individual 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 Army Commendation Medal, Republic
of Vietnam Gallantry Cross with Palm Unit Citation and 1 bronze service
star with his Vietnam Service Medal; and by providing him a correction to
his separation document that includes these changes.




                                  _____John N. Slone_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050007936                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-11-23                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |107                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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