RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         22 August 2006
      DOCKET NUMBER:  AR20060002646


      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. 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, award of the Purple Heart (PH).

2.  The applicant states, in effect, his service medical records will show
he was treated for a wound to his leg that he received from a Pungi Stake,
while serving in the Republic of Vietnam (RVN) in August 1968.

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 14 August 1970, the date of his separation from active
duty.  The application submitted in this case is dated 3 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 August 1967.  He was trained in, awarded, and
served in 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 1 April 1968 through 31 March 1969.  Item 38
(Record of Assignments) shows that during his RVN tour, he was assigned to
the 503rd Infantry Regiment, 173rd Airborne Brigade, performing duties in
MOS 11B as an infantry rifleman and squad leader, and as a radio telephone
operator.  Item 40 (Wounds) is blank, and the PH is not included in the
awards listed in Item 41 (Awards and Decorations).  Item 48 (Date of Audit)
shows the applicant last audited the DA Form 20 on 1 July 1969.

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


6.  On 14 August 1970, the applicant was honorably released from active
duty after completing a total of 3 years 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:  Bronze Star Medal; Air Medal; National Defense Service
Medal; Vietnam Service Medal with 5 bronze service stars; RVN Campaign
Medal with 60 Device; Combat Infantryman Badge; Parachutist Badge; Ranger
Tab; Marksman Qualification Badge with Rifle (M-16) and Pistol Bars; Expert
Qualification Badge with Rifle (M-14) and Machine Gun Bars; and 2 Overseas
Bars.  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.  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.

8.  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.

9.  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 (503rd Infantry Regiment)
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 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
medical treatment must have been made a matter of official record.  Item 40
of his 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.  He last audited this record on 1 July 1969, subsequent to his
departure from the RVN.  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.

2.  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 active duty tenure.  It also contains no medical treatments
records that indicate he was ever treated for a combat related wound while
serving 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.
Therefore, the regulatory burden of proof necessary to support award of the
PH has not been satisfied in this case.

3.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH now under consideration on 14 August
1970, 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
13 August 1973.  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.

4.  The record shows the applicant is entitled to the RVN Gallantry Cross
with Palm Unit Citation and RVN Civil Actions Honor Medal First Class Unit
Citation.  Therefore, his records should be corrected to show these awards.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___LDS _  __JTM __  ___JLP _  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board
determined during their review 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.  awarding him the first award of the Army Good Conduct Medal based
on his length of service, excellent conduct and efficiency ratings,
promotion to the rank of Staff Sergeant, and receipt of award of the Bronze
Star Medal, Combat Infantryman Badge, and Air Medal during the period 15
August 12967 through 14 August 1970;

      b.  amending his DD Form 214 to add the Army Good Conduct Medal and
to show that he was awarded the Republic of Vietnam Gallantry Cross with
Palm Unit Citation and the Republic of Vietnam Civil Actions Medal First
Class Unit Citation; and

      c.  providing him a correction to his separation document that
includes these awards.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the request relief.  As a result, the
Board recommends denial of so much of the application that pertains to
award of the Purple Heart.




                                  _____Linda D. Simmons______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060002646                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/08/22                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1970/08/14                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |Grant Partial                           |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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