RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 February 2007
      DOCKET NUMBER:  AR20060009996


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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 should be awarded the PH for
shrapnel wounds he received to his right buttocks in the Republic of
Vietnam (RVN) during a rocket attack.

3.  The applicant provides a self-authored statement and unit monthly
intelligence summary for the 101st Airborne Division in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 18 May 1973, the date of his separation.  The application
submitted in this case is dated 29 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 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 he enlisted in the Regular Army and
entered active duty on 21 May 1970.  He was trained in, awarded, and served
in military occupational specialty (MOS) 12B (Combat Engineer), and the
highest rank he attained while serving on active duty was specialist four
(SP4).

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows he
served in the RVN from 21 August 1971 through 5 April 1972.  Item 38
(Record of Assignments) shows that during his RVN tour, he was assigned to
the 524th Quartermaster Company, United States Army Pacific (USARPAC).
Item 40 (Wounds) is blank, and the list of awards contained in Item 41
(Awards and Decorations) does not include the PH.  The applicant last
audited this record on 14 May 1972.

5.  The applicant's Military Personnel Records Jacket (MPRJ) is void of any
documents or orders showing he was ever recommended for, or awarded the PH
by proper authority while serving on active duty.  It also does not contain
any medical treatment records that indicate he was ever treated for a
combat related wound or injury while serving on active duty.

6.  On 18 May 1973, the applicant was honorably separated after completing
2 years, 11 months, and 28 days of active military service.  The separation
document (DD Form 214) issued to him upon his separation shows, in Item 24
(Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons
Awarded or Authorized), that he earned the following awards while serving
on active duty:  National Defense Service Medal; RVN Campaign Medal with 60
Device; Vietnam Service Medal with 1 bronze service star; Sharpshooter
Marksmanship Qualification Badge with Rifle Bar; and 1 Overseas Bar.  The
PH is not included in the list of awards contained in Item 24 and the
applicant authenticated this document with his signature in Item 32
(Signature of Person Being Transferred or Discharged) on the date of his
separation.

7.  The applicant provides a copy of a monthly intelligence summary for the
month of September 1971, for the 101st Airborne Division.  This document
contains two entries showing that on 23 September, Camp Eagle received four
122 rockets, resulting in 1 U.S. wounded in action.  The entries do not
identify the U.S. wounded in action by name.

8.  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.

9.  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.  It further 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.

10.  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 VII,
Consolidation I, Consolidation II, and Vietnam Cease Fire campaigns.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was wounded in action in the RVN 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 14 May 1972,
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.

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 record shows the applicant should have discovered the alleged error
or injustice related to award of the PH now under consideration on 18 May
1973, the date of his separation.  Therefore, the time for him to file a
request for correction of any error or injustice expired on 17 May 1976.
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.

6.  The applicant's record does show that based on his service and campaign
participation in the RVN, he is entitled to the Republic of Vietnam
Gallantry Cross with Palm Unit Citation and 4 bronze service stars with his
Vietnam Service Medal.  The omission of these awards from his separation
document is an administrative matter that does not require Board action to
correct.  Thus, the Case Management Support Division (CMSD), St. Louis,
Missouri, will administratively correct his records and separation document
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

___MDM_  __JTM __  __QAS__  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 4 bronze service stars with his Vietnam
Service Medal; and by providing him a correction to his separation document
that reflects these changes.




                                  _____Mark D. Manning____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060009996                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/02/22                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1973/05/18                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY with Note                          |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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