RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         3 October 2006
      DOCKET NUMBER:  AR20060004279


      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. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Ms. Sherry J. Stone               |     |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
that his record shows he earned a General Educational Development (GED)
High School Equivalency.

2.  The applicant states, in effect, he was wounded in action in the
Republic of Vietnam (RVN) and was presented the PH by a Navy Admiral.  He
also states that he completed a high school GED program.  He claims that
while he was in the RVN he was bit by a rabid dog and during an assault by
the Viet Cong, he was knocked unconscious and received head injuries.  He
states that he awoke with a large group of wounded and was medically
evacuated to Da Nang Hospital for rabies shots and treated for head
injuries.  He claims he received the PH in his hospital bed.  He further
states that while in the military, he completed his GED and would like this
added to his record.

3.  The applicant provides a copy of a GED Certificate in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 19 September 1969, the date of his separation from active
duty.  The application submitted in this case is dated 10 March 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 16 September 1966.  He was initially trained in,
awarded, and served in military occupational specialty (MOS) 13A (Field
Artillery), and the highest rank he attained while serving on active duty
was specialist four (SP4).

4.  The applicant's DA Form 20 shows, in Item 31 (Foreign Service), that he
served in the RVN from 16 December 1967 through 16 April 1968.  Item 32
(Civilian Education) shows he completed 9 years of high school in 1966.
5.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows
that during his RVN tour, he was assigned to B Battery, 1st Battalion,
321st Artillery, performing duties in MOS 13A as a cannoneer.  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
3 September 1968.

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 19 September 1969, the applicant was honorably released from active
duty after completing a total of 2 years, 11 months, and 24 days of active
military service, and having accrued 10 days of time lost due to being
absent without leave (AWOL) from 1 through 9 June 1967 and on 5 December
1967.  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:  National Defense Service Medal, Vietnam
Service Medal, Republic of Vietnam Campaign Medal, and Parachutist Badge.
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.

8.  The applicant provides a certificate issued by the United States Armed
Forces Institute that indicates he received scores on the tests of general
educational development, high school level.  However, the certificate
confirms the certificate was not a high school diploma or equivalency
certificate, and there are no grade score reports provided to confirm he
satisfactorily completed the subject matter tests.

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 RVN battle 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. 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.

11.  The awards regulation stipulates 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.  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.  Table B-1 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, and Vietnam Counteroffensive Phase IV campaigns.

13.  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.

14.  Army Regulation 635-5 (Separation Documents) prescribes the separation
documents that must be prepared for Soldiers on retirement, discharge,
release from active duty service, or control of the Active Army.  It also
establishes standardized policy for preparing and distributing the DD Form
214.  The instructions in the version of the regulation in effect at the
time of the applicant's separation stipulated that the highest level of
civilian education level acquired during the period of military service
would be entered if appropriate.  This version of the regulation did not
provide for entering a record of GED testing.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was wounded in action and was
awarded 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, that the
wound required treatment 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.  He last audited this record on 3 September
1968, more than five months after 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.
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.

4.  Finally, the applicant's name is not included on the Vietnam Casualty
Roster, the official DA list of RVN battle casualties.  Therefore, absent
any evidence to confirm the applicant was wounded in action while serving
in the RVN, the regulatory burden of proof necessary to support award of
the PH has not been satisfied in this case.

5.  The applicant’s request that his record be corrected to show he
completed the requirements for a GED high school equivalency was also
carefully considered.  However, while the certificate provided by the
applicant confirms he completed GED testing, it stipulates “This report is
not a high school diploma or equivalency certificate”, and the governing
regulation in effect at the time, while providing for entering the highest
level of civilian education acquired in Item 25 of the DD Form 214, it did
not provide provisions for entering a record of GED testing.  However, a
copy of this Record of Proceedings, along with the GED certificate provided
by the applicant will be filed in his military record, and will provide a
record of his GED testing.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration related to award of the PH and to his GED
testing on 19 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 18 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 shows the applicant is entitled to the RVN Gallantry Cross
with Palm Unit Citation and 3 bronze service stars with his VSM.  The
omission of these awards from his record is an administrative matter that
does not require Board action.  Thus, 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

__KLW_ _  __TMR__  __SJS __  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 3 bronze service stars with his Vietnam
Service Medal; and by providing him a correction to his separation document
that includes these awards.




                                  _____Kenneth L. Wright____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004279                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/10/03                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1969/09/19                              |
|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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