RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 August 2006
      DOCKET NUMBER:  AR20050016404


      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. James E. Anderholm            |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. James R. Hastie               |     |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, that his DD Form 214 (Certificate of
Release or Discharge from Active Duty) be corrected to show the award of
the Purple Heart with Oak Leaf Cluster.

2.  The applicant states he should have been awarded the Purple Heart for
wounds sustained on 9 January 1966, while serving in the Republic of
Vietnam.  He explains that while his unit was under fire, he was returning
fire from an Armored Personnel Carrier (APC) with his 50 caliber machinegun
when the barrel caught up in a tree and his index, middle and ring fingers
were crushed between the gun and the gun shield of the machinegun.

3.  The applicant provides:

      a.  a copy of his DD Form 214;

      b.  a copy of his medical reports;

      c.  a copy of a letter from Combat Related Special Compensation
Division (CRSC); and

      d.  a copy of Headquarters, 1st Infantry Division General Orders
Number  
124, dated 30 December 1965.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 30 April 1980, the date he retired from active duty.  The
application submitted in this case is dated 24 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 entered active duty on 30 April
1960.  He served a tour of active duty in military occupational specialty
11B40 (Team Leader) with Troop A, 1st Squadron, 4th Cavalry, 1st Infantry
Division in the Republic of Vietnam during the period 6 October 1965 to 14
February 1966.

4. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons
Awarded or Authorized) of the applicant's DD Form 214 shows the National
Defense Service Medal; Combat Infantryman Badge; Vietnam Service Medal;
Overseas Service Bars (Third award); Army of Occupation Medal (Berlin);
Army Commendation Medal; Army Good Conduct Medal (Fifth award); Meritorious
Service Medal; Armed Forces Expeditionary Medal; Purple Heart; Valorous
Unit Award; Republic of Vietnam Gallantry Cross with Palm Unit Citation
(Second award).  It also lists his participation in the following
campaigns: the Republic of Vietnam Campaign Medal; Republic of Vietnam
Defense Campaign; Republic of Vietnam Counteroffensive; Republic of Vietnam
Counteroffensive Phase VII; Consolidation I; and Consolidation II.
However, it does not show the Purple Heart with Oak Leaf Cluster.

5.  Item 40 (Wounds) of the applicant's DA Form 20 shows the entry "Leg
injury and cut on face," dated 21 December 1965.  However, it does not show
any additional wounds.

6.  Headquarters, 1st Infantry Division General Orders Number 124, dated 
30 December 1965 awarded the applicant the Purple Heart (First Award).

7.  There are no general orders in the available records to show the
applicant was awarded the Purple Heart with Oak Leaf Cluster.

8.  The Vietnam Casualty Roster does not show that the applicant was
wounded twice while serving in the Republic of Vietnam.

9.  A review of the applicant's medical reports show he sustained an injury
to his index, middle and ring fingers due to his fingers being crushed
between the  
50 caliber machine gun and a tree while carrying the machine gun.  Also,
the medical report shows that the applicant lost his index finger due to an
infection.  However, the medical reports do not show that his fingers were
crushed due to enemy fire or hostile action.

10.  The letter from CRSC shows that the applicant was awarded 30 percent
by the Veterans Administration Office [now known as the Department of
Veterans Affairs] for combat related disability due to the loss of his
index finger.

11.  Army Regulation 600-8-22 (Military Awards) paragraph 2-8b (1)
provides, in pertinent part, that the Purple Heart is authorized for the
first wound suffered, but for each subsequent award an Oak Leaf Cluster
will be awarded to be worn on the medal or ribbon.  Not more than one award
will be made for more than one wound or injury received at the same instant
or from the same missile, force, explosion, or agent.

12.  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.

13.  Review of the applicant's records does not show entitlement to
additional awards.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his DD Form 214 be corrected to show the
award of the Purple Heart.

2.  Orders show that the applicant was awarded the Purple Heart (First
Award) for an injury to his right leg and a cut on his face in the Line of
Duty, on  
21 December 1965.  Although, the applicant presented medical reports, the
reports do not show that on 9 January 1966, he was injured as a result of
enemy fire or hostile action.  The medical reports show that his index,
middle and ring fingers were crushed between the 50 caliber machine gun and
a tree due an accident.  The statement from the applicant that he was
firing his 50 caliber machinegun from the APC when his fingers were crushed
between the gun shield of the machinegun and a tree, contradicts the
medical report.

3.  The CRSC letter shows the applicant was awarded a 30 percent disability
rating by the Department of Veterans Affairs; however, the letter does not
authorize the award of the Purple Heart with Oak Leaf Cluster.



4.  There is no evidence in the available records which show that his
injury to his index, middle and ring finger was a result of hostile action.
 Also, his name does not appear twice on the Republic of Vietnam Casualty
Files.  Therefore, he is not entitled to correction to show the award of
the Purple Heart with Oak Leaf Cluster.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 April 1980.  Therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on  
29 April 1983.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___jea__  ____ded__  ___jrh___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that it was appropriate to waive failure to timely
file in this case based on the Purple Heart.

2.  The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determines the overall merits of
this case are insufficient as basis for correction of the records of the
individual concerned to show award of the Purple Heart with Oak Leaf
Cluster.




                                  _________James E. Anderholm_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060016404                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |20060808                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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