RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         25 July 2006
      DOCKET NUMBER:  AR20050017680


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Allen L. Raub                 |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Ms. Peguine M. Taylor             |     |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 received the PH at the 93rd
Evacuation Hospital in the Republic of Vietnam (RVN) from the division
commander while he was recovering from shrapnel wounds, for which he now
receives a 10 percent disability compensation from the Department of
Veterans Affairs (VA).

3.  The applicant provides VA Rating Decision Extracts in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 23 February 1971, the date of his separation from active
duty.  The application submitted in this case is dated 6 December 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 inducted into the Army and entered
active duty on 24 February 1969.  He was trained in, awarded, and served in
military occupational specialty (MOS) 11B (Infantryman), and the highest
rank he attained while serving on active duty was sergeant (SGT).

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows that
he served in the RVN from 20 July 1969 through 16 July 1970.  During his
RVN tour, he was assigned to Company C, 5th Battalion, 12th Infantry
Regiment, 199th Infantry Brigade, performing duties in MOS 11B as a
grenadier and team leader.

5.  Item 40 (Wounds) of the applicant's DA Form 20 is blank, and Item 41
(Awards and Decorations) does not include the PH in the list of authorized
awards.  Item 48 (Date of Audit) shows he last audited the DA Form 20 on
13 November 1970.

6.  The applicant's Military Personnel Records Jacket (MPRJ) contains no
orders, or other documents that show he was ever recommended for, or
awarded the PH by proper authority, or that he was ever treated for a
combat related wound by military medical personnel.

7.  On 23 February 1971, the applicant was honorably separated after
completing a total of 2 years of active military service.  The separation
document (DD Form 214) he was issued shows that he earned the following
awards during his tenure on active duty:  National Defense Service Medal;
Combat Infantryman Badge; Vietnam Service Medal with 2 bronze service
stars; Army Commendation Medal; and RVN Campaign Medal with 1960 Device.
The PH is not included in the list of authorized awards contained on the DD
Form 214, and the applicant authenticated this document with his signature
on the date of his separation.

8.  The applicant provides extracts of VA Rating Decision that shows he
received service connection and a 10 percent disability rating for a shell
fragment wound, left arm, tender.  The extract provided does not include
the VA explanation of the disability rating decision, nor does it address
the evidence considered by the VA in rendering its decision.  The document
fails to address whether there were  military medical records confirming
the circumstances under which the fragment wound was received, or whether
there was any evidence confirming this wound was received as a direct
result of, or that it was caused by enemy action in the RVN.

9.  During the processing of this case, a member of the Board staff
reviewed the Department of the Army Casualty Roster.  The applicant's name
was not included on this RVN battle casualty list.

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 the PH is awarded to any member who has been wounded or killed
in action. A wound as an injury to any part of the body from an outside
force or agent sustained under conditions defined by this regulation.  In
order to support awarding a member the PH, it is necessary to establish
that the wound for which the award is being made was received as a direct
result of, or was caused by enemy action, the wound required treatment by a
medical officer.  This treatment must be supported by records of medical
treatment for the wound or injury received in action, and 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 of the same regulation contains a list of RVN campaigns.  It
shows that during the applicant’s tenure of assignment, campaign credit was
awarded for the Vietnam Summer-Fall 1969, Vietnam Winter-Spring 1970,
Sanctuary Counteroffensive, and Vietnam Counteroffensive Phase VII
campaigns.

12.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit
Register) establishes the eligibility of individual members for campaign
participation credit, assault landing credit, and unit citation badges
awarded during the Vietnam Conflict.  It confirms that during his tenure of
assignment in the RVN, the applicant’s unit (Company C, 5th Battalion, 12th
Infantry Regiment) earned the Valorous Unit Award, RVN Civil Actions Honor
Medal First Class Unit Citation and RVN Gallantry Cross with Palm Unit
Citation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to the PH, and the
supporting evidence he submitted were carefully considered.  However, by
regulation, in order to support award of the PH, there must be evidence
that the wound for which the award is being made was received as a direct
result of, or was caused by enemy action.

2.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was
never wounded in action, and Item 41 does not include the PH in the list of
authorized awards entered.  The applicant last audited this record on 13
November 1970, subsequent to his departure from the RVN.  In effect, this
audit was his verification that information contained on the DA Form 20, to
include the Item 40 and Item 41 entries, was correct at that time.  His
MPRJ is void of any orders, or other documents showing that he was ever
recommended for, or awarded the PH by proper authority during his tenure on
active duty, and it contains no medical treatments records that indicate he
was ever treated for a combat related wound while on active duty.

3.  Further, the list of authorized awards contained on the applicant's DD
Form 214 does not include the PH, and he authenticated this document with
his signature on the date of his separation.  In effect, his signature was
his verification that the information contained on the separation document,
to include the list of awards, was correct at the time it was prepared and
issued.

4.  Finally, the applicant's name is not included on the Vietnam Casualty
Roster, the official DA list of RVN battle casualties.  Absent any evidence
(PH Orders, Eye-Witness Statements, Medical Treatment Documents etc) that
confirm the fragment wound for which he is now receiving a VA disability
rating was received as 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.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH now under consideration on 23 February
1971, the date of his separation from active duty.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
23 February 1974. However, 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.

7.  The record confirms that based on his RVN service and campaign
participation, the applicant is entitled to the Valorous Unit Award, RVN
Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal
First Class Unit Citation, and 4 bronze service stars with his Vietnam
Service Medal.  The omission of these awards from his record and separation
document is an administrative matter that does not require Board action.
As
a result, the Case Management Support Division (CMSD), St. Louis, Missouri
will make the necessary corrections as outlined in paragraph 3 of the
BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___ALR _  __LMD __  ___PMT _  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 his records to show he is entitled
to the Valorous Unit Award, Republic of Vietnam Gallantry Cross with Palm
Unit Citation, Republic of Vietnam Civil Actions Honor Medal First Class
Unit Citation, and 4 bronze service stars with his Vietnam Service Medal;
and by providing him a corrected separation document that includes these
awards.




                                  _____Allen L. Raub_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017680                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/07/25                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2006/07/DD                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY with Note                          |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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