RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 March 2007
      DOCKET NUMBER:  AR20060010895


      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. William D. Powers             |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Mr. Jerome L. Pionk               |     |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
Bronze Star Medal (BSM).

2.  The applicant states, in effect, he was awarded the BSM after his
discharge and the PH was awarded while he was in the hospital in the
Republic of Vietnam (RVN); however, neither award was included on his
separation document
(DD Form 214).

3.  The applicant provides no additional documentation in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 8 September 1967, the date of his separation.  The
application submitted in this case is dated 21 July 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 was inducted into the Army and
entered active duty on 2 September 1965.  He was trained in, awarded, and
served in military occupational specialty (MOS) 11B (Infantryman), and the
highest rank he attained while serving on active duty was sergeant (SGT).

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows he
served in the RVN from 12 November 1966 through 6 September 1967.  Item 38
(Record of Assignments) shows that during his RVN tour, he was assigned to
Company C, 2nd Battalion, 18th Infantry Regiment, performing duties in MOS
11B as an assistant gunner and team leader.  Item 40 (Wounds) is blank, and
the PH and BSM are not included in the list of awards contained in Item 41
(Awards and Decorations).  Item 44 (Time Lost) shows that he accrued 12
days of time lost due to being absent without leave (AWOL) from 25 April
through 6 May 1966.
5.  The applicant's Military Personnel Records Jacket (MPRJ) contains no
orders, or other documents, that indicate the applicant was ever
recommended for or awarded either the PH or BSM by proper authority while
he was serving on active duty.  It also contains no medical treatment
records that show he was ever treated for a combat related wound.

6.  The applicant's MPRJ contains a Report of Medical Examination (SF 88),
dated 7 September 1967, which documents the applicant separation physical
examination.  This document contains no indication that the applicant was
ever wounded in action, or treated for a combat related wound.

7.  On 8 September 1967, the applicant was honorably separated after
completion a total of 1 year, 11 months, and 26 days of creditable active
military service and accruing 12 days of time lost due to AWOL.  The DD
Form 214 he was issued at the time shows he earned the National Defense
Service Medal, Vietnam Service Medal, RVN Campaign Medal, and Combat
Infantryman Badge during his active duty tenure.  The PH and BSM are not
included in the list of awards entered, and the applicant authenticated
this document with his signature on the date of his separation.

8.  During the processing of this case, a member of the Board staff
reviewed the Department of the Army (DA) Vietnam Casualty Roster.  There is
no entry on this roster pertaining to the applicant.

9.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards
policy.  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.

10.  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 campaign a member is credited with participating in
while serving in the RVN.

11.  Paragraph 3-13 of the awards regulation contains guidance on the BSM.
It states, in pertinent part, that it is awarded to members who distinguish
themselves through heroic or meritorious achievement or service in
connection with military operations against an armed enemy.  A
recommendation for this award must be formally submitted and it must be
approved by the proper authority and officially announced in orders.

12.  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 (2nd Battalion, 18th Infantry
Regiment) earned the RVN Civil Actions Honor Medal First Class Unit
Citation and RVN Gallantry Cross with Palm Unit Citation.  It also shows
that during this period, credit was granted for the Vietnam
Counteroffensive Phase II and Vietnam Counteroffensive Phase III campaigns.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to 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 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.

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 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.

4.  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.

5.  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.)
showing the applicant was wounded in action, the regulatory burden of proof
necessary to support award of the PH has not been satisfied in this case.

6.  The applicant's claim that he was awarded the BSM subsequent to his
separation was also carefully considered.  However, his MPRJ is void of an
award recommendation or orders awarding the BSM.  Absent any evidence
(Orders or Certificate) that confirms he was awarded the BSM by proper
authority while serving on active duty, there is an insufficient
evidentiary basis to support granting this portion of the requested relief.


7.  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.

8.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH and BSM now under consideration on 8
September 1967, the date of his separation.  Therefore, the time for him to
file a request for correction of any error or injustice expired on 7
September 1970.  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.

9.  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 2 bronze service stars with his Vietnam Service Medal.  Te
omission of these awards 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

__WDP __  __PMS__  __JLP __  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 concerned 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, Republic of Vietnam Civil Actions
Honor Medal, and 2 bronze service stars with his Vietnam Service Medal; and
by providing him a correction to his separation document that includes
these awards.




                                  _____William D. Powers____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060010895                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/03/13                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1967/09/08                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |OS Rtn                                  |
|BOARD DECISION          |DENY with Note                          |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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