RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         24 August 2006
      DOCKET NUMBER:  AR20060002897


      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. Jeanette R. McCants           |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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 wounded in action in the
Republic of Vietnam (RVN), but no paperwork was sent in to document this
fact.  As a result, he was never awarded the PH.

3.  The applicant provides the following documents in support of his
application:  Chronological Records of Medical Care (SFs 600); Clinical
Record Narrative Summary (SF 603); Abbreviated Clinical Record (SF 539);
Statement in Support of Claim (VA Form 21-4138; and Human Resources Command
(HRC), Military Awards Branch Letter, dated 29 August 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 10 December 1971.  The application submitted in this case
was received on 22 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 military record shows he enlisted in the Regular Army
and entered active duty on 20 February 1969.  He was trained in, awarded,
and served in military occupational specialty (MOS) 62B Engineer Equipment
Repairer), 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 he
served in the RVN from 29 November 1969 through 7 November 1970.  Item 38
(Record of Assignments) shows that during his RVN tour, he was assigned to
the 701st Maintenance Battalion, 1st Infantry Division, performing duties
in MOS 62B as an engineer equipment repairer.

5.  Item 40 (Wounds) of the applicant's DA Form 20 is blank, and the PH is
not included in the list of awards contained in Item 41 (Awards and
Decorations). Item 48 (Date of Audit) confirms he last audited his DA Form
20 on
28 September 1971.

6.  The applicant's Military Personnel Records Jacket (MPRJ) contains no
orders, or other documents that indicate the applicant was ever recommended
for, or awarded the PH by proper authority while serving on active duty.
The MPRJ also is void of any medical treatment records that show he was
ever treated for a wound he received as a result of enemy action.

7.  On 10 December 1971, the applicant was honorably separated after
completing 2 years, 9 months, and 21 days of active military service.  The
separation document (DD Form 214) he was issued shows he earned the
following awards while serving on active duty:  National Defense Service
Medal; Vietnam Service Medal with 2 bronze service stars; RVN Campaign
Medal with 1960 Device; Army Commendation Medal with 1st Oak Leaf Cluster;
Marksman Marksmanship 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 the separation document
with his signature on the date of his separation.

8.  On 29 August 2005, the Chief, Military Awards Branch, HRC, responded to
the applicant's request to the National Personnel Records Center (NPRC) for
the PH.  This HRC official informed the applicant that a review of the
historical casualty records for the RVN failed to reveal his name among the
list of RVN battle casualties.  It further indicated that during the
Vietnam conflict, division and hospital commanders had PH award authority,
and would have awarded him the PH at the time had he been eligible.  The
applicant was further advised on ways he could find documentary evidence,
such as unit morning reports or notification telegrams, which could
possibly support his claim of entitlement to the PH.

9.  The applicant provides a SF 600 and Narrative Summary that show on
22 August 1970, he was treated for a superficial fragment wound to his
thighs and abdomen.  He also provides a SF 539 that shows he received
further treatment for these wounds on 25 August, and another SF 600 that
shows his bandages were changed on 26 August and 28 August 1970.  None of
these medical treatment records indicate the applicant's fragment wounds
were received a result of enemy action.  He also provides a VA claim form
in which he claims he sustained fragment wounds to the thighs, and abdomen
in the RVN.


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 RVN battle 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.

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 Winter-Spring 1970, Sanctuary Counteroffensive, and
Vietnam Counteroffensive Phase VII 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 (701st Maintenance Battalion)
earned the RVN Civil Actions Honor Medal First Class Unit Citation and the
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.

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
September 1971, almost 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.
His 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 that he received as a result of
enemy action while he was serving on active duty.

3.  Further, the list of authorized awards contained on the applicant's 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.

4.  Finally, the applicant's name is not included on the Vietnam Casualty
Roster, the official DA list of RVN battle casualties.  Absent any evidence
(PH Orders, Eyewitness Statements, Medical Treatment Documents, etc.) that
confirm the fragment wounds he was treated for were received as a result of
enemy action, the regulatory burden of proof necessary to support award of
the PH has not been satisfied in this case.

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.  The record confirms that based on his RVN service and campaign
participation, the applicant 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.

7.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH now under consideration on 10 December
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 9
December 1974. However, 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 omission of the awards identified in the preceding paragraph from
his record and separation document is an administrative matter that does
not require Board action.  As a result, the Case Management Support
Division (CMSD),
St. Louis, Missouri will make the necessary corrections as outlined in
paragraph 3 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JRM _  ___SWF_  __RCH__  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.  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 his records to show he is entitled
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 corrected separation document that includes these awards.




                                  _____Jeanette R. McCants___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060002897                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/08/24                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1971/12/10                              |
|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.                      |                                        |


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