RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 August 2006
      DOCKET NUMBER:  AR20060000308


      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. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jerome L. Pionk               |     |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 he be awarded the Purple Heart
and that it be added to his DD Form 214, Armed Forces of the United States,
Report of Transfer or Discharge.

2.  The applicant states, in effect, that in mid-October 1969 his unit was
just south of Cu Chi when their vehicles were hit with small arms fire.  He
received a bullet and shrapnel in his left leg and is now 10% disabled.  He
believes it was an oversight by the Army that he did not receive the Purple
Heart.  He is requesting that a Purple Heart be awarded him at this time.
He adds that he did not think to pursue the Purple Heart until he started
receiving treatment at the VA (Department of Veterans Affairs) hospital.

3.  In a hand-written, self-authored addendum to his application to the
Board, he added further that he was young at the time.  Now that he has
complications with his knee and PTSD (post-traumatic stress disorder), he
feels it is necessary that he receive the Purple Heart.  Also, he would
like to be able to hand his Purple Heart to his son one day.  "Please", he
asks the Board, "this is important to me" because he is 10% disabled, his
unit was hit with small arms fire, and he received a bullet and shrapnel in
his left leg.

4.  In support of his application, the applicant submits a copy of DD Forms
214 and a copy of a VA Rating Decision, dated 31 October 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 10 December 1971, the date of his release from
active duty.  The application submitted in this case is dated 16 December
2005, but was received for processing on 5 January 2006.

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 limitation 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 on 5 February 1969.  He was honorably discharged on 11
February 1969, for the purpose of immediately enlisting for 3 years in the
Regular Army, on 12 February 1969.  He completed basic combat training at
Fort Benning, Georgia, and his advanced individual training at Fort Lee,
Virginia.  After completing all required training, he was awarded the
military occupational specialty (MOS), 76Y (Armorer/Unit Supply
Specialist).

4.  The applicant served in Vietnam from 10 July 1969 through 5 July 1970,
with the 18th Replacement Company, 90th Replacement Battalion.

5.  The applicant was honorably released from active duty, on 10 December
1971, under the provisions of Army Regulation (AR) 635-200, at the
expiration of his term of service.  He was separated in the rank/pay
grade, Specialist Four/E-4.  On the date he was released from active
duty, he had completed 2 years, 10 months, and 6 days of total active
military service, with no days lost.

6.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and
Campaign Ribbons Awarded or Authorized), of the applicant's DD Form 214,
shows he was awarded:  the Army Commendation Medal, the National Defense
Service Medal; the Good Conduct Medal, the Vietnam Service Medal; the
Republic of Vietnam Campaign Medal with “1960” Device; and the Sharpshooter
Marksmanship Qualification Badge, with Rifle Bar.  The Purple Heart is not
shown on the applicant's DD Form 214.

7.  Item 24, of the applicant's DD Form 214, shows the applicant
participated in three campaigns of the Vietnam War; however, this entry
is incorrect.  While in Vietnam, the applicant participated in four
campaigns:  the Vietnam Summer-Fall 1969, which extended from 9 June
through 31 October 1969; the Vietnam Winter-Spring 1970, which extended
from 1 November 1969 through 30 April 1970; the Sanctuary
Counteroffensive, which extended from 1 May through 30 June 1970; and he
Vietnam Counteroffensive, Phase VII, which extended from 1 July 1970
through 30 June 1971.  The bronze service stars are to be affixed to his
Vietnam Service Medal to denote his campaign participation credit.

8.  There is no entry in Item 40 (Wounds) of the applicant's DA Form 20,
Enlisted Qualification Record, to show he received a wound in action
against a hostile force.

9.  There is no entry in Item 41 (Awards and Decorations), of the
applicant's DA Form 20, showing he was awarded the Purple Heart.

10.  There are no orders in the applicant's military personnel records
awarding him the Purple Heart.

11.  The applicant's name does not appear on the Vietnam Casualty List.

12.  On 2 September 2004, the applicant applied for service-connected
compensation from the VA.  On 6 October 2004 the VA requested the
applicant's service medical records from the Army.  A request for
information form, on file in the applicant's service records, shows his
medical and dental records were provided the VA on 18 October 2004.

13.  In the "Reasons for Decision" section of the VA rating decision, it
states, "A review of your service medical records noted superficial
shrapnel wound of left leg and gunshot wound of left knee without
complications of sequela."  During his VA examination, the applicant
reported a bullet and shrapnel injury to the left knee that entered
laterally around the tibial plateau and exited around the medial femoral
condyle.  A review of notes related to this wound of his left knee and the
decision to grant 10% disability compensation also revealed reference to
post-service treatment records that noted complaints of left knee pain by
the applicant.

14.  The applicant did not provide a copy of the referenced medical records
that were the source for the statements made by the VA.  The VA rating
decision does not give the facts, circumstances, or date surrounding the
applicant allegedly being wounded.  It does not state whether or not the
wound was sustained as a result of enemy activity or as a result of an
accident.

15.  The applicant's DD Form 214 shows entitlement to the Vietnam Service
Medal; however, it does not show the bronze service stars to which the
applicant is entitled for his campaign participation, as noted in paragraph
seven above.

16.  Department of the Army (DA) Pamphlet 672-3, Unit Citation and Campaign
Participation Credit Register, dated 29 January 1988, which lists unit
awards received by units serving in Vietnam, shows that the unit the
applicant was assigned to was awarded the Meritorious Unit Commendation,
for the period 1 October 1968 through 30 April 1971, by Department of the
Army General Order (DAGO) Number 43, dated 1972.  This unit award is not
shown on the applicant's DD Form 214.




17.  The applicant's unit, a subordinate unit of the US Army, Vietnam,
(USARV) is entitled to award of the Republic of Vietnam Gallantry Cross,
with Palm, Unit Citation, for the period 20 July 1965 through 28 March
1973, awarded by DAGO 8, dated 1974.

18.  AR 600-8-22 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:  a.) the wound was
the result of hostile action, b.) the wound must have required treatment,
and c.) the medical treatment must have been made a matter of official
record.  This regulation also provides that there is no statute of
limitations on requests for award of the Purple Heart.

19.  AR 600-8-22, in pertinent part, authorizes award of a bronze service
star, based on qualifying service, for each campaign listed in its Appendix
B and states that authorized bronze service stars will be worn on the
appropriate service medal, in this case, the Vietnam Service Medal.

20.  AR 670-1, chapter 29, prescribes policy and guidance for wear of U.S.
and foreign unit awards.  This regulation states that a Soldier may wear
the unit award permanently if the individual was assigned to, and present
for duty with the unit any time during the period cited; or was attached by
competent orders to, and present for duty with the unit during the entire
period, or for at least thirty consecutive days of the period cited.

21.  AR 670-1, in effect at the time, governed the requirements for the
overseas service bar.  In pertinent part, it provided that a bar is
authorized for wear for each period of active Federal service as a member
of the U.S. Army outside of the continental limits of the United States.
One overseas service bar is authorized for each six-month period served in
the Republic of Vietnam.  To calculate the entitlement, both the month of
arrival and month of departure are counted as a whole month no matter the
number of days in that month that were spent in the hostile fire zone.

DISCUSSION AND CONCLUSIONS:

1.  To be awarded the Purple Heart, substantiating evidence must be
provided to verify that the applicant was wounded as the result of hostile
action, the wound must have required medical treatment, and the medical
treatment must have been made a matter of official record.


2.  The evidence shows that in September 2004 the applicant submitted a
claim to the VA for service-connected disability compensation for wounds he
allegedly sustained to the left knee while he was in Vietnam.  The
applicant's service medical records were requested of the Army.  In October
2004, the Army sent those medical records to the VA.

3.  In adjudicating the applicant's claim the applicant was examined and
his service medical records were reviewed.  Evidence was found and a
statement was made in the VA rating decision that, "A review of your
service medical records noted superficial shrapnel wound of left leg and
gunshot wound of left knee without complications of sequela."

4.  The applicant did not provide a copy of the referenced medical records
that were the source for the statement made by the VA.  There were no
entries made in his service personnel records to show the date he was
allegedly wounded in action, that he was wounded in action against a
hostile enemy, and the applicant's name does not appear on the Vietnam
Casualty List; therefore, it has not been substantiated by a preponderance
of the evidence that the wound was a result of hostile action.

5.  Based on the available evidence, the applicant is not entitled to award
of the Purple Heart and to have it added to his DD Form 214.

6.  The applicant served in four campaigns while in Vietnam.  He is
therefore entitled to award of four bronze service stars to be affixed to
his Vietnam Service Medal and to be added to his DD Form 214 to denote his
campaign participation credit.

7.  The applicant served in a unit, which was awarded the Meritorious Unit
Commendation and the Republic of Vietnam Gallantry Cross, with Palm, Unit
Citation, while he was a member of the unit.  These unit awards are not
shown on his DD Form 214.  He is entitled to these unit awards and to have
them added to his DD Form 214.

8.  The applicant served in Vietnam for on year, including the month of his
arrival in and the month of his departure from Vietnam.  He is therefore
entitled to award of two overseas service bars and to have these bars added
to his DD Form 214.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 December 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 9 December 1974.  Although the applicant did not file
within the ABCMR's statute of limitations, it is appropriate to waive
failure to timely file based on the fact there is no statute of limitations
on requests for award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__LDS __  __J____  ____JLP__  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by:

      a.  deleting the Vietnam Service Medal from the applicant's DD Form
214;

      b.  awarding the applicant the Vietnam Service Medal, with four
bronze service stars, and adding this award to his DD Form 214;

      c.  awarding the applicant; the Meritorious Unit Commendation and the
Republic of Vietnam Gallantry Cross, with Palm, Unit Citation and adding
these unit awards to his DD Form 214; and

      d.  awarding the applicant two overseas service bars and adding these
bars to his DD Form 214.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
deny award of the Purple Heart to the applicant and its addition to his DD
Form 214.




                                  __Linda D. Simmons____
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000308                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060822                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |PARTIAL GRANT                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  46   |107.0000                                |
|2.   61                 |107.0015                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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