RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         17 August 2006
      DOCKET NUMBER:  AR20060001201


      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. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Dean A. Camarella             |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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 was never awarded the PH for being
wounded in action on 10 February 1968, in the Republic of Vietnam (RVN).

3.  The applicant provides two third-party statements in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 29 September 1969.  The application submitted in this case
is dated 18 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 enlisted in the Regular Army and
entered active duty on 30 September 1966.  He was trained in, awarded, and
served in military occupational specialty (MOS) 13B (Field Artillery
Operator), and the highest rank he attained while serving on active duty
was specialist four (SP4).

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows that
he served in the RVN from 7 March 1967 through 7 March 1968.  Item 38
(Record of Assignments) shows that during his RVN tour, he was assigned to
the 2nd Battalion, 4th Artillery Regiment.  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
28 March 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 29 September 1969, the applicant was honorably separated after
completing a total of 3 years of active military service.  The separation
document (DD Form 214) he was issued at the time shows that during his
active duty tenure, he earned the following awards:  National Defense
Service Medal; RVN Campaign Medal; Vietnam Service Medal; Sharpshooter
Qualification Badge with Rifle Bar; and 2 Overseas Bars.  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.

7.  The applicant provides a third-party statement from an individual who
indicates he was the applicant's unit commander in the RVN.  This
individual indicates that on the night of 9-10 February 1968, the applicant
was manning an M-60 machine gun position, while the unit was under attack
by an enemy force, and was burned by hot cartridge casings that lodged
between his flak vest and skin.  He indicates that during this period he
used command judgment about the severity of wounds, and he was not inclined
to favorably consider a PH for anything other than a serious wound.  He
states that in looking back, at this policy, as well as his attitude at the
time, he should have been most concerned about ensuring his Soldiers were
treated and recognized for their combat wounds.  He recommends the
applicant be awarded the PH for the burns he suffered while engaged in
enemy action.

8.  The applicant also provides a third-party statement from a friend who
served with him in the RVN.  This individual indicates that when he arrived
on the morning of the battle, he stopped and asked the applicant how he was
doing.  The applicant indicated he was doing fine, but his back was burning
a little.  He claims when the applicant removed his shirt, burns caused by
shell casings could clearly be seen.  He indicates that the applicant
explained he had been burned because his position had been right beside the
M-60 machine gun and in the way of the shell casings.

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 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.

11.  The awards regulation defines 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.

12.  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.

13.  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 Counteroffensive Phase II, Vietnam Counteroffensive
Phase III, and TET Counteroffensive campaigns.

14.  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 (4th Artillery) 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, that the wound was treated by
military medical personnel, and a record of this treatment must have been
made a matter of official record.

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 28
March 1969,
more than a year after 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.

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 statements he submitted is not
in question.  However, given there are no medical treatments records
confirming he was treated for the burns in question, or that verify the
burns were received as a result of enemy action, or that he was awarded the
PH by proper authority while he was serving on active duty, the regulatory
burden of proof necessary to support award of the PH has not been satisfied
in this case.  As a result, notwithstanding the statements provided, it
would not be appropriate, or in the interest of all those who served in the
RVN and faced similar circumstances, to award him the PH at this late date.


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 29
September 1969, 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 28 September 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 3
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

___RTD _  __DAC__  __RMN__  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 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
3 bronze service stars with his Vietnam Service Medal; and by providing him
a correction to his separation document that includes these awards.




                                  _____Richard T. Dunbar __
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001201                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/08/17                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1969/09/29                              |
|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.                      |                                        |


-----------------------
[pic]