RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         14 September 2006
      DOCKET NUMBER:  AR20060002451


      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. Eric N. Anderson              |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. Richard O. Murphy             |     |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 does not know if his commander
recorded his sick call visit after he was wounded in the left foot during a
mortar attack.  He claims he was treated at the unit that was next to his
unit.  He states his wound was as if he had been cut with a razor, and he
had to make a second sick call trip while the wound was still visible.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 6 October 1968, the date of his release from active duty
(REFRAD), The application submitted in this case is dated 1 February 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 15 February 1966.  He was trained in, awarded, and
served in military occupational specialty (MOS) 71N (Movements Specialist),
and the highest rank he attained while serving on active duty was
specialist five (SP5).

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows that
he served in the RVN from 4 October 1967 through 3 October 1968.  Item
38 (Record of Assignments) shows that during his RVN tour, he was assigned
to the the 71st Transportation Company, performing duties as a clerk
typist.

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

6.  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.


7.  On 6 October 1968, the applicant was honorably separated after
completing a total of 2 years, 7 months, and 22 days 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 National Defense
Service Medal, RVN Campaign Medal, and Vietnam Service Medal.  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.  During the processing of this case, a member of the Board’s staff
reviewed the Department of the Army Casualty Roster.  The applicant's name
was not included on this 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 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, and the record of this treatment 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.

11.  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 Vietnam Counteroffensive Phase III, TET
Counteroffensive, Vietnam Counteroffensive Phase IV, and Vietnam
Counteroffensive Phase V campaigns.

12.  Department of the Army General Order Number 8, dated in 1974,
authorized the award of the Republic of Vietnam Gallantry Cross with Palm
Unit Citation to all personnel assigned to the RVN from 8 February 1962
through 28 March 1973.

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 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 the PH is not included in the list of
authorized awards contained in Item 41.

3.  The applicant's MPRJ is void of any orders, or other documents that
show he was ever recommended for, or awarded the PH by proper authority,
and there are no medical treatment records on file that indicate he was
ever treated for a combat related wound while serving on active duty.

4.  Further, the PH is not included in the list of authorized awards
contained on the applicant's DD Form 214, 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.

5.  The veracity of the applicant's claim of entitlement to the PH is not
in question; however, given there are no medical treatments records
confirming he was awarded the PH by proper authority, or that he was ever
wounded in action, or treated for a combat related wound while 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, 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.

6.  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.

7.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH now under consideration on 6 October
1968, the date of his REFRAD.  Therefore, the time for him to file a
request for correction of any error or injustice expired on 5 October 1971.
 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.

8.  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, and 4 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

__ENA __  __RML __  __ROM _  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, and 4 bronze service stars with his Vietnam
Service Medal; and by providing him a correction to his DD Form 214 that
includes these awards.




                                  _____Eric N. Anderson _____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060002451                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/09/14                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1968/10/06                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |OS Ret                                  |
|BOARD DECISION          |DENY with Note                          |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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