RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 February 2007
      DOCKET NUMBER:  AR20060008573


      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. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Hubert O. Fry                 |     |Chairperson          |
|     |Mr. William F. Cain               |     |Member               |
|     |Mr. Dale E. DeBruler              |     |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, that he be awarded the Purple Heart,
with oak leaf cluster.

2.  The applicant states, in effect, that the documents were never filed.
The Tet Offensive (1968) took precedence over paperwork at the battalion
headquarters.

3.  In support of his application, the applicant submits no additional
documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 14 December 1973, the date of his release from
active duty.  The application submitted in this case is dated 28 May 2006
and was received for processing from his Member of Congress (MOC) on 15
June 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 limitation 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 records show he enlisted in the Regular Army on 14
August 1964.  He completed basic combat training at Fort Dix, New Jersey,
and his advanced individual training at Fort Rucker, Alabama.  On
completion of his training, he was awarded the military occupational
specialty (MOS), 670 (Aircraft Maintenance Crewman).

4.  On 25 May 1966, the applicant was discharged under the provisions of
Army Regulation (AR) 635-205, to accept a commission.

5.  The applicant served in Vietnam from 20 May 1967 through 19 May 1968,
with the 1st Battalion, 26th Infantry Regiment, 1st Infantry Division.

6.  The applicant served in Korea from 2 July 1972 through 21 June 1973,
with the 1st Battalion, 32nd Infantry Regiment, 2nd Infantry Division, and
with the 3rd Brigade, 2nd Infantry Division.

7.  The applicant was honorably released from active duty, on 14 December
1973, under the provisions of AR 635-100, Chapter 3, paragraph 3-58.  He
was separated in the rank/pay grade, Captain/O-3.  On the date he was
released from active duty, he had completed a combined total of 9 years, 4
months, and 1 day active military service, with no time lost.

8.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and
Campaign Ribbons Awarded or Authorized), of the DD Form 214, Armed Forces
of the United States, Report of Transfer or Discharge, the applicant was
issued on his discharge from his enlisted service, shows he was awarded:
the Good Conduct Medal and the Marksman Marksmanship Qualification Badge,
with Rifle Bar (M-14 Rifle).

9.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and
Campaign Ribbons Awarded or Authorized), of the DD Form 214, the
applicant was issued on his release from active duty, shows he was
awarded:  the Silver Star; the Bronze Star Medal, with "V" Device; the
Army Commendation Medal; the Air Medal; the Good Conduct Medal; the Armed
Forces Expeditionary Medal; the Vietnam Service Medal, the Republic of
Vietnam Campaign Medal; the Combat Infantryman Badge; the Parachutist
Badge; and two overseas service bars.  The Purple Heart, with oak leaf
cluster, is not shown among his authorized awards.

10.  There is no entry in Item 21 (Awards and Decorations), of the
applicant's DA Form 66, Officer Qualification Record, showing he was
awarded the Purple Heart and the Purple Heart, with oak leaf cluster.

11.  There are no orders in the applicant's military personnel records
awarding him the Purple Heart and the Purple Heart, with oak leaf cluster.

12.  In a lengthy three-page letter written to his MOC, the applicant
stated he had been wounded in action in roughly August 1968, when he was
near the date of his departure from Vietnam, and also around November or
December 1967, while he served in Vietnam.

13.  The first Purple Heart he earned, he was told by the battalion
adjutant, he was wounded in a mortar attack around November or December
1967.  He received shrapnel in the right shoulder and right arm.  He was
not evacuated at the time, but several days later, after he developed
infection and swelling of the lymph nodes, he was sent to the 10th Field
Evacuation Hospital where he spent a week.

14.  The second occasion for award of the Purple Heart was during a battle
in the Michelin rubber plantation.  On an unknown date, in June 1968,
during the campaign, his company sustained multiple casualties.  In the
heat of the battle, he was carrying the dead and wounded and his battalion
adjutant came by to check on them.  He pointed out that the blood that was
on his uniform appeared to be coming from him.  He found that the applicant
had some deep cuts on his back and shoulder, presumably from an RPG 7
(Rocket Propelled Grenade).  He adds that for the wound and infections in
the Michelin rubber plantation area, the 1st Infantry Division's record of
his evacuation to the field hospital will serve as corroboration.

15.  On another time he was wounded in action, in roughly August 1968, he
allegedly lost his hearing for several days after being knocked out by the
concussion of a 140 mm Chinese-manufactured free flight rocket.  On this
occasion, the applicant adds, he did not go see the battalion medic nor did
he report the injury to his commanding officer because he had heard that
when you are wounded (in country) and were very close to being sent home,
you would be delayed in going home until you were fully recovered.

16.  The applicant underwent a separation physical examination in December
1973.  The applicant reported he had been seen as a patient in Vietnam for
shrapnel wounds and bamboo poisoning; however, there were no corroborating
entries made by medical authority on the Report of Medical History prepared
at the time.  The examining physician entered, "Fungi of the foot from Viet
Nam in 1967" on the Report of Medical History.

17.  A VA Form 07-3101, Request for Information, on file in the applicant's
service records shows his medical records were transferred to the VARO
(Department of Veterans Affairs Regional Office), Providence, Rhode Island,
in February 1974.  These documents are not available for the Board's review
and the applicant provided no documents from these records to corroborate
his allegations.

18.  The applicant's DD Form 214 shows entitlement to the Vietnam Service
Medal; however, it does not show the bronze service stars to which the
applicant is entitled for his campaign participation.

19.  While in Vietnam, the applicant participated in four campaigns of the
Vietnam War:  the Vietnam Counteroffensive, Phase II, which extended from
1 July 1966 through 31 May 1967; the Vietnam Counteroffensive, Phase III,
which extended from 1 June 1967 through 29 January 1968; the Tet
Counteroffensive, which extended from 30 January through 1 April 1968; and
the Vietnam Counteroffensive, Phase IV, which extended from 2 April through
30 June 1968;

20.  Department of the Army (DA) Pamphlet 672-3, Unit Citation and
Campaign Participation Credit Register, dated 29 January 1988, which
lists unit awards received by units serving in Vietnam, shows the unit
the applicant was assigned to was awarded the Republic of Vietnam
Gallantry Cross, with Palm, Unit Citation, and the Republic of Vietnam
Civil Actions Honor Medal, First Class, Unit Citation.  The applicant was
assigned to the unit at the time it was cited for these unit awards.

21.  AR 600-8-22 provides, in pertinent part, that the Purple Heart is
awarded for a wound sustained as a result of hostile action.
Substantiating evidence must be provided to verify that:  a.) the wound was
the result of hostile action, b.) the wound must have required treatment
and c.) the medical treatment must have been made a matter of official
record.

22.  AR 600-8-22, in pertinent part, authorizes award of a bronze service
star, based on qualifying service, for each campaign listed in its Appendix
B and states that authorized bronze service stars will be worn on the
appropriate service medal, in this case, the Vietnam Service Medal.

23.  AR 670-1, chapter 29, prescribes policy and guidance for wear of U.S.
and foreign unit awards.  This regulation states that a Soldier may wear
the unit award permanently if the individual was assigned to, and present
for duty with the unit any time during the period cited; or was attached by
competent orders to, and present for duty with the unit during the entire
period, or for at least thirty consecutive days of the period cited.

24.  The ABCMR considers individual applications that are properly brought
before it.  In appropriate cases, it directs or recommends correction of
military records to remove an error or injustice.  The ABCMR will decide
cases on the evidence of record. It is not an investigative body.

DISCUSSION AND CONCLUSIONS:

1.  To be awarded the Purple Heart, substantiating evidence must be
presented to show that the Soldier was wounded as the result of hostile
action, the wound must have required treatment, and the medical treatment
must have been made a matter of official record.

2.  There is no evidence, and the applicant provided insufficient evidence
to show he was wounded as the result of hostile action.  The applicant's
name does not appear on the Vietnam Casualty Listing.  There were no
entries made in his service personnel records to show he was wounded as a
result of hostile action and no orders were published to award him the
Purple Heart.

3.  In his letter to his MOC, when he was allegedly wounded and lost his
hearing, he did not go see the battalion medic nor did he report the
injury to his commanding officer for fear he would not be allowed to
return to the United States on his scheduled departure date from Vietnam.

4.  When he was allegedly wounded in a mortar attack around November or
December 1967 and received shrapnel in the right shoulder and right arm,
his statement to his MOC does not indicate he received medical treatment
until allegedly several days later when he was required to be evacuated
because he had developed infection and swelling of the lymph nodes.  This
report is not corroborated by entries on medical records prepared at the
time he underwent his separation physical examination nor on his officer
qualification record.

5.  The applicant alleges he should receive a Purple Heart for wounds he
sustained during a battle in the Michelin rubber plantation in June 1968.
At the time, he alleges he was carrying his unit's dead and wounded and his
battalion adjutant came by to check on them.  The battalion adjutant
pointed out that the blood that was on his uniform appeared to be coming
from him.  The adjutant, he states, found that the applicant had some deep
cuts on his back and shoulder, presumably from a rocket propelled grenade.
He adds that for the wound and infections in the Michelin rubber plantation
area, the 1st Infantry Division's record of his evacuation to the field
hospital would serve as corroboration.

6.  The ABCMR considers individual applications that are properly brought
before it.  In appropriate cases, it directs or recommends correction of
military records to remove an error or injustice.  The ABCMR will decide
cases on the evidence of record. It is not an investigative body.

7.  Based on the evidence in this case, the applicant is not entitled to
award of the Purple Heart or the Purple Heart, with oak leaf cluster, and
to have these awards added to his DD Form 214.

8.  The applicant served in four campaigns while he served in Vietnam.  He
is therefore entitled to award of the Vietnam Service Medal, with four
bronze
service stars, as opposed to the Vietnam Service Medal now shown on his
DD Form 214.

9.  The applicant served in a unit, which was awarded the Republic of
Vietnam Gallantry Cross, with Palm, Unit Citation and the Republic of
Vietnam Civil Actions Honor Medal, First Class, Unit Citation, while he was
a member of the unit.  These unit awards are not shown on his DD Form 214.
He is entitled to these unit awards and to have them added to his DD Form
214.

10.  The applicant served in Korea during the qualifying period for award
of the Korea Defense Service Medal.  He is entitled to this award and to
have it added to his DD Form 214.

11.  Evidence shows that the applicant’s records contain administrative
error which does not require action by the Board.  Therefore,
administrative correction of the applicant’s records will be accomplished
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.

12.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 December 1973; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 13 December 1976.  Although the applicant did not file
within the ABCMR's 3-year statute of limitations, it is appropriate to
waive failure to timely file based on the fact there is no statute of
limitations on requests for award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___D___  ___WFC         HOF__  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 by:

      a.  deleting the Vietnam Service Medal from the applicant's DD Form
214;

      b.  awarding the applicant the Vietnam Service Medal, with four
bronze service stars, and the Korea Defense Service Medal and adding these
awards to his DD Form 214;

      c.  awarding the applicant; the Republic of Vietnam Gallantry Cross,
with Palm, Unit Citation, and the Republic of Vietnam Civil Actions Honor
Medal, First Class, Unit Citation, adding these unit awards to his DD Form
214;




                                  _____Hubert O. Fry, Jr.____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060008573                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070213                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |Denial with Note                        |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107.0000                                |
|2.                      |107.0015                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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