RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         15 August 2006
      DOCKET NUMBER:  AR20060000878


      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. Shirley L. Powell             |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. John G. Heck                  |     |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) and
Combat Infantryman Badge (CIB).

2.  The applicant states, in effect, he received a shrapnel wound to the
right hip, and did not receive the PH, or the CIB.  He believes he did not
receive these awards because he was medically evacuated from the Republic
of Vietnam (RVN).

3.  The applicant provides no additional documentary evidence in support of
this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 15 March 1971, the date of his separation from active
duty.  The application submitted in this case is dated 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 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 was inducted into the Army and
entered active duty on 10 July 1969.  He was trained in and awarded
military occupational specialty (MOS) 11B (Infantryman), and the highest
rank he attained while serving on active duty was staff sergeant (SSG).

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows that
he served in the RVN from 7 June 1970 through 7 December 1970.  Item 38
(Record of Assignments) shows that during his RVN tour, he was assigned to
Company C, 4th Battalion, 3rd Infantry Regiment, performing duties in MOS
11B as a team leader, and to the 23rd Administration Company from 16
October 1970 through 6 December 1970.  It also shows that on 7 December
1970, he was medically evacuated to Valley Forge General Hospital,
Phoenixville, Pennsylvania, as a patient.

5.  Item 40 (Wounds) of the applicant's DA Form 20 is blank, and the PH and
CIB are not included in the list of awards contained in Item 41 (Awards and
Decorations).

6.  The applicant's Military Personnel Records Jacket (MPRJ) does not
contain orders, or other documents indicating that he was ever recommended
for, or awarded the PH and/or CIB by proper authority while 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.

7.  The applicant's MPRJ contains a Report of Medical History (SF 89),
dated 5 March 1971, completed in conjunction with his separation physical
examination during his separation processing.  This document indicates the
applicant suffered from hip and shoulder problems since August 1970.
However, it does not indicate that these conditions were combat related, or
that he was ever wounded as a result of enemy action.

8.  The applicant's MPRJ also contains a Report of Medical Examination (SF
88) documenting his separation physical examination.  This report indicates
that the applicant suffered from pain in his shoulders and hips.  It gives
no indication that he had received a shrapnel wound as a result of enemy
action, or that he had ever been wounded in action while serving on active
duty.

9.  On 15 March 1971, the applicant was honorably separated after
completing a total of 1 year, 7 months, and 6 days of active military
service.  The separation document (DD Form 214) he was issued shows that
during his active duty tenure, he earned the following awards:  National
Defense Service Medal; Vietnam Service Medal (VSM); RVN Campaign Medal with
60 Device; Ranger Tab; Marksman Qualification Badge with Rifle (M-14) and
Machine Gun Bars; and Sharpshooter Qualification Badge with Rifle (M-16)
Badge.  The PH and CIB are not included in the list of authorized awards
contained on the DD Form 214, and the applicant authenticated this document
with his signature in item 32 (Signature of Person Being Transferred or
Discharged) on the date of his separation.

10.  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 casualty list.

11.  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 is defined 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.

12.  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.  A silver service star is used in lieu of 5 bronze service stars to
denote participation in 5 campaigns.

13.  Table B-1 of the awards regulation contains a list of RVN campaigns.
It shows that during the applicant’s tenure of assignment, campaign credit
was awarded for the Sanctuary Counteroffensive and Vietnam Counteroffensive
Phase VII campaigns.

14.  Chapter 8 of the awards regulation contains guidance on the CIB.  It
states, in pertinent part, that there are basically three requirements for
award of the CIB. The Soldier must have an infantry MOS, must have served
in active ground combat while assigned or attached to an infantry unit of
brigade, regimental or smaller size, and must have actively participated
when the unit was engaged in active ground combat.  The Awards Branch of
the U.S. Army Human Resources Command (formerly known as the Total Army
Personnel Command) has advised, in similar cases, that during the Vietnam
era, the Combat Infantryman Badge was awarded only to enlisted individuals
who held and served in the infantry MOSs 11B, 11C, 11F, 11G, or 11H.

15.  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 units (23rd Administration Company
and 4th Battalion, 3rd Infantry Regiment) earned the Meritorious Unit
Commendation (MUC) and RVN Gallantry Cross with Palm Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of entitlement to the PH was 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 result of enemy action.  In this case, while it is clear the
applicant was medically evacuated from the RVN, there is no evidence of
record that indicates this was the result of his being wounded in action.

2.  The applicant's MPRJ contains no orders, or other documents indicating
he we was ever recommended for, or awarded the PH by proper authority while
serving on active duty.  There are also no medical treatment records on
file that show he was ever treated for a combat related wound or injury.
The SF 88 and SF 89 completed during the applicant's separation processing
indicates he suffered from shoulder and hip pain; however, neither document
indicates these injuries were received as a result of enemy action.

3.  Further, Item 40 of his DA Form 20 is blank, which indicates he was
never wounded in action, and the PH is not included in the list of awards
contained in Item 41.  In addition, the PH is not included in the list of
authorized awards contained on his DD Form 214, and he authenticated this
document with his signature on the date of his separation.  His signature,
in effect, was his verification that the information contained on the
separation document, to include the list of awards, was correct at the time
the DD Form 214 was prepared and issued.  His name is also not included on
the Vietnam Casualty Roster, the official DA list of RVN battle casualties.
 Absent any evidence of record confirming the applicant was wounded in
action, or that he was ever treated for a combat related wound, the
regulatory burden of proof necessary to support award of the PH has not
been satisfied in this case.

4.  The applicant's claim of entitlement to the CIB was also carefully
considered.  However, by regulation, in order to support award of the CIB,
there must not only be evidence confirming the member held and served in an
infantry MOS in a qualifying infantry unit, but also that the member was
present and actively participated while the unit was engaged in combat with
enemy forces.

5.  Although the applicant's record shows he held an infantry MOS and
served in a qualifying infantry unit for a little over 3 months while in
the RVN, there is no evidence of record confirming his presence and
participation with his unit while it was engaged in active ground combat
with enemy forces.  Further, the CIB is not listed with the authorized
awards listed on his DA Form 20 and DD Form 214, and there are no orders on
file indicating that he was ever awarded the CIB by proper authority while
serving on active duty.  Absent any evidence of record confirming he met
the requirements necessary to support award of the CIB, there is an
insufficient evidentiary basis to support granting this portion of the
requested relief.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration related to award of the PH and CIB on
15 March 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
14 March 1974.  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 evidence of record shows that based on his RVN service and campaign
participation, the applicant is entitled to the RVN Gallantry Cross with
Palm Unit Citation and 2 bronze service stars with his VSM.  The omission
of these awards from his record is an administrative matter that does not
require Board action.  As a result, the Case Management Support Division
(CMSD), St. Louis, Missouri, will correct his record 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

___SLP _  __RML __  __JGH __  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 and Combat Infantryman Badge.  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 the records of the individual
concerned to show his entitlement to the Republic of Vietnam Gallantry
Cross with Palm 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.




                                  _____Shirley L. Powell _____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000878                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/08/15                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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