RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 December 2006
      DOCKET NUMBER:  AR20060006264


      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. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Mr. Michael Flynn                 |     |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 award of the Purple Heart.

2.  The applicant states, in effect, that this is his third attempt in
requesting award of the Purple Heart for wounds he received during the
Vietnam War.  He states, in effect, that he was wounded in the neck by
bullet shrapnel on the morning of
31 January 1968 during the Widows' Village battle at the start of the TET
Offensive.  The applicant also states, in effect, that he does not have
medical documentation to substantiate the incident, but has obtained
written statements from his former platoon leader (now a retired U.S. Army
colonel) and two former fellow Soldiers.  The applicant further states, in
effect, that his first attempt at obtaining award of the Purple Heart was
through regular channels, which was refused.  Then, he sought the
assistance of Congressman B_____, but he was also unsuccessful.  Now, this
is his final attempt at obtaining the award.

3.  The applicant provides a self-authored statement, dated 28 March 2006;
a letter from Representative R__ B____, dated 3 February 2006; 2 memoranda
from the Chief, Military Awards Branch, U.S. Army Human Resources Command,
Alexandria, Virginia, dated 21 and 26 January 2006; a statement from H____
L. S. Jezek, dated 24 July 2002; statement from J___ E_____ D________,
dated 30 August 2002; letter from R_____ A. D____, dated 20 August 2002;
and
DD Form 214 (Report of Separation from Active Duty), with an effective date
of 31 August 1975.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 31 August 1975, the date he retired from active duty.  The
application submitted in this case is dated 21 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 service records show that he enlisted in the
Army and entered active duty on 12 January 1954.  Upon completion of basic
combat training and advanced individual training, the applicant was awarded
military occupational specialty (MOS) 112 (Heavy Weapons Infantryman).  On
10 June 1959, he was honorably released from active duty after completing 5
years,
4 months, and 29 days active service and transferred to the U.S. Army
Reserve.

4.  On 25 August 1959, the applicant enlisted in the Regular Army and
reentered active duty in MOS 11B (Light Weapons Infantryman).  The
applicant continued to serve on active duty, attained the rank of sergeant
first class/pay grade E-7 on 9 June 1966, and reclassified into MOS 71Q
(Information Specialist) on 8 May 1972.  The applicant honorably retired
from active duty on 31 August 1975 after completing a total of 21 years, 5
months, and 5 days of active service.

5.  The applicant's DA Form 20 (Enlisted Qualification Record), Item 31
(Foreign Service), shows, in pertinent part, that he served in the Republic
of Vietnam from 7 January 1968 through 11 October 1968, and from 7
September 1970 through
5 January 1971.  Item 39 (Campaigns) of this document shows that he
participated in the Vietnam Counteroffensive Phase III, TET
Counteroffensive, Vietnam Counteroffensive Phase IV, Vietnam
Counteroffensive Phase V, and Vietnam Counteroffensive Phase VII campaigns.

6.  The applicant's military service records contain a DD Form 214
(Certificate of Release or Discharge from Active Duty), issued upon his
retirement and two
DD Forms 215 (Correction to DD Form 214, Certificate of Release or
Discharge from Active Duty), dated 22 May 1998 and 25 May 1999.  Item 13
(Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons
Awarded or Authorized) of the DD Form 214, coupled with the two DD Forms
215 show that he was awarded the Silver Star, Bronze Star Medal,
Meritorious Service Medal, Army Commendation Medal, Good Conduct Medal (5th
Award), National Defense Service Medal with 1 oak leaf cluster, Armed
Forces Expeditionary Medal, Vietnam Service Medal with 1 silver service
star, Republic of Vietnam Campaign Medal with "1960" device, Combat
Infantryman Badge, Master Parachutist Badge, Drill Instructor
Identification Badge, Presidential Unit Citation, Meritorious Unit
Commendation, Vietnamese Presidential Unit Citation, Republic of Vietnam
Valorous Unit Award, Republic of Vietnam Gallantry Cross with Palm Unit
Citation, Republic of Vietnam Civil Actions Honor Medal First Class Unit
Citation, and Expert Marksmanship Qualification Badge with Rifle Bar.

7.  The applicant's military service records contain a copy of
Headquarters,
9th Infantry Division (Vietnam), General Orders Number 5831, dated 17 July
1968.  These orders show, in pertinent part, that the applicant was awarded
the Silver Star for gallantry in action involving close combat against an
armed hostile force in the Republic of Vietnam on 31 January 1968.  The
orders also contain a narrative citation of the applicant's actions on the
morning of 31 January 1968.  The orders further show, in pertinent part,
that the wound the applicant's platoon leader received during the incident
is mentioned in the narrative citation; however, there is no mention in the
narrative citation that the applicant was wounded in action during the
battle.

8.  There is no evidence in the applicant’s service personnel record that
shows that he was awarded the Purple Heart.  There also is no evidence in
his records that he was wounded or treated for wounds as a result of
hostile action.  His
DA Form 20 does not show an entry in Item 40 (Wounds) or list the Purple
Heart in Item 41 (Awards and Decorations).  The applicant's name is not
listed on The Adjutant General, Casualty Division's, Vietnam Casualty
Roster.

9.  In support of his application, the applicant provides a self-authored
statement, three eyewitness statements, and a letter from Representative
R__ B____.  The congressman's letter to the applicant forwards 2 memoranda
from Lieutenant Colonel W______ H. J______, Chief, Military Awards Branch,
U.S. Army Human Resources Command, Alexandria, Virginia.  The memoranda, in
pertinent part, informed the applicant that the Military Awards Branch
reviewed the historical casualty records and award files for the Vietnam
era, but found no evidence that the applicant was wounded in action and/or
awarded the Purple Heart.  The Chief, Military Awards Branch, also advised
that eyewitness statements alone are insufficient for award of the Purple
Heart.

10.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple
Heart is awarded for a wound sustained as a result of hostile action.  A
wound is defined as an injury to any part of the body from an outside force
or agent sustained as a result of hostile action.  A physical lesion is not
required, however, the wound for which the award is made must have required
treatment by a medical officer and records of medical treatment for wounds
or injuries received in action must have been made a matter of official
record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that he is entitled to award of the
Purple Heart for a wound he received to his neck that was caused by bullet
shrapnel on the morning of 31 January 1968 during the Widows' Village
battle at the start of the TET Offensive.

2.  The Board does not dispute the veracity of the applicant's statement,
or the statements of his former platoon leader and two former fellow
Soldiers. However, eyewitness statements alone, gathered nearly 35 years
after the date of the incident, provide insufficient evidence to support
award of the Purple Heart.  The Army regulatory guidance governing the
criteria for award of the Purple Heart is clear in that the wound for which
the award is made must have required treatment by a medical officer and
records of medical treatment for wounds or injuries received in action must
have been made a matter of official record.

3.  There is no evidence the applicant was awarded the Purple Heart.  There
are no medical records which show that the applicant was wounded or injured
as a result of hostile action.  There is also no medical evidence of record
which shows that he received medical treatment for a wound or injury that
was sustained as a result of enemy action.  Therefore, there is
insufficient evidence upon which to base award of the Purple Heart in this
case.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 August 1975; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
30 August 1978.  The applicant did not 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JS___  ___LE  __  ___MJF _  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.




                                  ______John Slone_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006264                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061214                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19750831                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 12                  |
|DISCHARGE REASON        |Sufficient Service for Retirement       |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |107.0015.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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