RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         1 December 2005
      DOCKET NUMBER:  AR20050007942


      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 T. Meixell               |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Richard G. Sayre              |     |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 based on his service connected
disabilities, which were incurred while in combat, he should be eligible
for the PH. He also states that he received his service connected
disabilities due to a concussion he received after an explosion.  He
further states, that even though he did not receive shrapnel or gunshot
wounds, they are in really combat incurred and battle related.

3.  The applicant provides his separation document (DD Form 214) and a
Department of Veterans Affairs (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 8 June 1967.  The application submitted in this case is
dated
23 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 was enlisted into the Army and entered
active duty on 13 January 1964.  He was trained in, awarded, and served in
military occupational specialty (MOS) 13A (Field Artillery), and the
highest rank he attained while serving on active duty was private first
class (PFC).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he
served in the Republic of Vietnam (RVN) from 5 May 1965 through 26 April
1966.  It further shows he was assigned to Battery A, 3rd Battalion, 319th
Artillery from
24 July 1965 through 23 April 1966, performing duties in MOS 13A as a Field
Artilleryman.  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 a Medical Condition Physical Profile
Record (DA Form 8-274) and Report of Medical Examination (SF 88), which
indicates he suffered from neurosensory hearing loss and held a permanent
three (P3) profile. These documents also show he was ineligible for
assignments involving habitual or frequent exposure to loud noises or
firing of weapons and he was to wear ear protective devices when exposed to
loud noises or firing of weapons."

7.  On 8 June 1967, the applicant was honorably separated after completing
a total of 3 years of active military service.  The DD Form 214 he was
issued at that time shows he earned the following awards:  Parachutist
Badge; Vietnam Service Medal (VSM); National Defense Service Medal (NDSM);
Vietnam Campaign Medal with 60 Device; Expert Qualification Badge with
Rifle Bar; and 1 Overseas Bar.

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 copy of a VA Rating Decision, dated 12
February 2004, which shows the 0 percent (%) disability rating he received
for a “bilateral hearing loss was increased to 100% and he was granted a
10% disability rating for tinnitus, effective 30 June 2003.  This document
gives no indication that these rating decisions were supported by military
medical treatment records or that the conditions were sustained in combat.


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 was awarded the RVN Gallantry Cross with
Palm Unit Citation and Meritorious Unit Commendation (MUC); and campaign
participation credit was granted for the Vietnam Defense and Vietnam
Counteroffensive Phase I 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 the wound for
which the PH is being awarded was received 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.


3.  The veracity of the applicant’s claim that he suffered from hearing
loss while in the RVN is not in question.  However, absent any evidence of
record corroborating that he received this injury 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 now under consideration on 8 June 1967.  Therefore, the time for
him to file a request for correction of any error or injustice expired on 7
June 1970.  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 evidence of record does confirm that based on his RVN service and
campaign participation, the applicant is entitled to the Meritorious Unit
Commendation, 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.
6.  The Case Management Support Division (CMSD), St. Louis, Missouri, will
administratively correct the applicant’s records to include the awards
identified in the preceding paragraph 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

___JTM _  ___ML  __  __RGS__  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 Meritorious Unit
Commendation, 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.




                                  _____John T. Meixell______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050007942                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-12-01                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1967/06/08                              |
|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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