RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 July 2006
      DOCKET NUMBER:  AR20050015942


      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. Dean L. Turnbull              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |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 award of the Purple Heart.

2.  The applicant states he should have been awarded the Purple Heart for
his wound sustained in the Republic of Vietnam.

3.  The applicant provides a copy of Standard Form 93 (Report of Medical
History).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 30 June 1974, the date he retired from active duty.  The
application submitted in this case is dated 5 October 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 records show that he was inducted into the Army of the
United States and entered active duty on 8 June 1954.  He served a tour of
duty with Headquarters and Headquarters Detachment (HHD), 43rd Signal
Battalion in the Republic of Vietnam during the period 31 July 1969 to 28
January 1970.

4.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and
Campaign Ribbons Awarded or Authorized) of the applicant's DD Form  
214 (Report of Separation from Active Duty), shows the Army Good Conduct
Medal (6th Award), Army Commendation Medal, National Defense Service Medal
with Oak Leaf Cluster, Republic of Vietnam Campaign Medal, Vietnam Service
Medal, and two Overseas Service Bars.  However, it does not show the Purple
Heart.

5.  Item 40 (Wounds) of the applicant's DA Form 20 shows no entry.

6.  There are no general orders in the available records which show the
applicant was awarded the Purple Heart.
7.  The Standard Form 93 shows that the applicant was injured during a
mortar attack.  Further entry shows "Swelling right knee.  Exact cause of
injury unknown.”

8.  A review of the applicant's medical records does not show that he was
treated for a swollen right knee caused by the enemy as a result of hostile
action.

9.  A review of the Republic of Vietnam Casualty Files does not show the
applicant's name listed among those wounded.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent
part, that the Purple Heart is awarded for a wound sustained as a result of
hostile action.  Substantiating evidence must be provided to verify that
the wound was the result of hostile action, the wound must have required
treatment by a medical officer, and the medical treatment must have been
made a matter of official record.  This regulation also provides that there
are no time limitations on requests for award of the Purple Heart.

11.  Army Regulation 600-8-22, paragraph 2-8 (3) states, in pertinent part,
that when contemplating an award of this decoration, the key issue that
commanders must take into consideration is the degree to which the enemy
caused the injury. The fact that the applicant was participating in direct
or indirect combat operation is a necessary prerequisite, but is not sole
justification for award.  Item (5)(g) of this same regulation states, in
pertinent part, that an example of an injury or wound which clearly does
not qualify for award of the Purple Heart is an accident, to include
explosive, aircraft, vehicular, and other accidental wound not related to
or caused by enemy action.

12.  Review of the applicant's records indicates entitlement to additional
awards that are not shown on his DD Form 214.

13.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign
Participation Credit Register), lists the unit awards received by units
serving in the Republic of Vietnam.  This document shows the unit, to which
the applicant was assigned, HHD, 43rd Signal Battalion, was cited for an
award of the Meritorious Unit Commendation based on Department of the Army
General Orders Number 24, dated 1972.

14.  Department of the Army Pamphlet 672-3 shows the applicant  is  entitled
to award of the Republic of Vietnam Gallantry Cross with Palm Unit  Citation
based on Department of the Army General Orders Numbers 8, dated 1974.

15.  Appendix B of Army Regulation 600-8-22 (Military Awards) shows that
based on the applicant's dates of service in the Republic of Vietnam, he
participated in the Vietnam Summer-Fall 1969 (9 June 1969 to 31 October
1969) and Vietnam Winter-Spring 1969 (1 November 1969 to 30 April 1970).
This same regulation states that a bronze service star will be awarded for
wear on the Vietnam Service Medal for participation in every campaign which
a Soldier is credited with.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to award of the Purple
Heart.

2.  There are no general orders that show the applicant was awarded the
Purple Heart.  There is no evidence in his available records which show he
was wounded or injured as a result of hostile action or treated by a
medical officer.  His name does not appear on the Republic of Vietnam
Casualty Files.

3.  The Standard Form 93 does not show the exact cause of the applicant's
injury.  In the absence of evidence to the contrary, it must be presumed
that the swelling of the applicant's right knee was the result of an
accident.  Any injury sustained by an accident does not meet the criteria
for the award of the Purple Heart.  To be awarded a Purple Heart, the wound
must have been as a result of hostile action, the wound must have required
medical treatment, and that treatment has to be made a matter of record.
Therefore, there is insufficient evidence to award the applicant the Purple
Heart.

4.  Orders show that HHD, 43rd Signal Battalion was awarded the Meritorious
Unit Commendation.  Therefore, he is entitled to correction to show this
award.

5.  Orders show that the applicant is entitled to award of the Republic of
Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, he is entitled
to correction to show this foreign unit award.

6.  Evidence of records show that the applicant was assigned to a unit that
participated in two campaigns.  Therefore, he is entitled to correction to
show two bronze service stars to be worn on his Vietnam Service Medal.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 June 1974.  Therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 29 June 1977.  Although the applicant did not file within the
ABCMR's statute of limitations, it is appropriate to waive failure to
timely file in this case based on the fact there is no statute of
limitations on requests for award of the Purple Heart.
8.  Evidence shows that the applicant’s records contain administrative
error which does not require action by the Board.  Therefore,
administrative correction of the applicant’s records will be accomplished
by the Case Management Support Division (CMSD), St. Louis, Missouri, as
outlined by the Board in paragraph 2 of the BOARD
DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____eem_  ___jcr___  ___jtm __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 basis for correction of the records
of the individual concerned.

2.  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 by showing award of the Meritorious Unit Commendation, Republic
of Vietnam Gallantry Cross with Palm Unit Citation, and two bronze service
stars to be affixed to the Vietnam Service Medal.




                                  _________John T. Meixell________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015942                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060727                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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