RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         1 August 2006
      DOCKET NUMBER:  AR20060000155


      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:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. Conrad Meyer                  |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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, while he was on a spraying mission in
the Republic of Vietnam (RVN) the helicopter he was in came under enemy
fire.  He was hit in the left eye with a piece of shell fragment and was
treated for his wound at Landing Zone (LZ) English.

3.  The applicant provides the following documents in support of his
application:  Self-Authored Statement; Third-Party Statement; Medical
Treatment Record; Photo; and Enlisted Qualification Record (DA Form 20).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 10 October 1969, the date of his release from active duty.
 The application submitted in this case is dated 20 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 that he enlisted in the Regular Army and
entered active duty on 18 October 1967.  He was trained in, awarded, and
served in military occupational specialty (MOS) 54E (Chemical Specialist),
and the highest rank he attained while serving on active duty was
specialist four (SP4).

4.  The applicant's DA Form 20 shows that he served in the RVN from 3 April
through 10 October 1969.  Item 38 (Record of Assignments) shows that during
his RVN tour, he was assigned to the 51st Chemical Detachment, 173rd
Infantry Brigade, performing duties in MOS 54E as a chemical specialist.
Item 40 (Wounds) is blank, and the PH is not included in the list of
authorized awards contained in Item 41 (Awards and Decorations).  The
applicant last audited the DA Form 20 on 9 October 1969.

5.  The applicant's Military Personnel Records Jacket (MPRJ) is void of any
orders, or other documents indicating that he was ever wounded in action,
or that he was recommended for or awarded the PH by proper authority while
he was serving on active duty.  The MPRJ is also void of any medical
treatment records that show he was ever treated for a combat related wound.


6.  On 10 October 1969, the applicant was honorably released from active
duty after completing a total of 1 year, 11 months, and 23 days of active
military service.  The separation document (DD Form 214) he was issued on
the date of his release from active duty shows that he earned the following
awards during his active duty tenure:  National Defense Service Medal;
Vietnam Service Medal; Air Medal; Army Commendation Medal; RVN Campaign
Medal; Bronze Star Medal; and 1 Overseas Bar.  The PH is not included in
the list of authorized awards entered on the DD Form 214, and the applicant
authenticated this document with his signature on the date of his release
from active duty.

7.  The applicant provides a third-party statement from an individual who
served with him in the RVN.  This individual indicates that he saw the
applicant socially after he had been wounded and remembers seeing him
wearing an eye patch.  He further states that the applicant explained to
him that he had received a fragment wound to the eye from enemy ground fire
while on a mission spraying chemicals.  The applicant also provides a photo
of himself wearing an eye patch, and a medical treatment record (SF 600)
that indicates he was treated for an eye injury on 20 June 1969, while
serving in the RVN.  The SF 600 does not document the circumstances under
which the eye-injury was received, nor does it confirm the injury was
combat related.

8.  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.

9.  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.
10.  Paragraph 2-13 of the awards regulation contains guidance on the
Vietnam Service Medal.  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 TET 69 Counteroffensive and
Vietnam Summer-Fall 1969 campaigns.

11.  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 (51st Chemical Detachment)
earned the 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 9
October 1969, subsequent to his departure from the RVN, during his
separation processing.  In effect, this audit was his verification that the
information contained on the DA Form 20, to include the Item 40 and Item 41
entries, was correct at that time.

3.  The applicant's 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.  Further, the list of authorized awards contained on his 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.  Finally, his name is not included on the Vietnam Casualty Roster,
the official DA list of RVN battle casualties.

4.  The veracity of the applicant's claim of entitlement to the PH, and of
the information contained in the third-party statement and other documents
he submitted is not in question.  However, given the medical treatment
record does not confirm the eye injury in question was received as a result
of enemy action, and absent any evidence of record to confirm this injury
was combat related, 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 10 October
1969, the date of his release from active duty.  Therefore, the time for
him to file a request for correction of any error or injustice expired on 9
October 1972.  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 does show that based on his RVN service and campaign
participation, he is entitled to the RVN Gallantry Cross with Palm Unit
Citation, RVN Civil Actions Honor Medal First Class Unit Citation, and 2
bronze service stars with his Vietnam Service Medal.  The omission of these
awards from his separation document is an administrative matter that does
not require Board action.  Therefore, his record 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

___KAN _  __CVM__  __YM ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice related to award of the
Purple Heart.  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 concerned 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 Republic of Vietnam
Gallantry Cross with Palm Unit Citation, Republic of Vietnam Civil Actions
Honor Medal First Class Unit Citation, and 2 bronze service stars with his
Vietnam Service Medal; and by providing him a correction to his separation
document that includes these awards.




                                  _____Kathleen A. Newman___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000155                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/08/01                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1969/10/10                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY with Note                          |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  61   |107.0015                                |
|2.  46                  |107.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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