RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2007
	DOCKET NUMBER:  AR20060011991 


	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.


	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, that he is entitled to the PH for a wound he received to his right knee.  He indicates that he discovered the error while filing a compensation claim in October 2005, and also learned at that time that it could be corrected.

3.  The applicant provides a copy of Department of Veterans Affairs (VA) Rating Decision, dated 623 March 2006, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 23 June 1970.  The application submitted in this case is dated 16 August 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 was inducted into the Army of the United States and entered active duty on 19 June 1968.  He was trained, awarded and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman).

4.  The applicant's Enlisted Qualification Record (DA Form 20) includes an entry in Item 31 (Foreign Service) that shows he served in the Republic of Vietnam (RVN) from 18 November 1968 to 15 November 1969.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to the 
23rd Administration Company from 25 November to 5 December 1968 and to Company B, 4th Battalion, 3rd Infantry Regiment from 6 December to 14 November 1969.  Item 40 (Wounds) is blank and the PH is not included in the list of awards in Item 41 (Awards and Decorations).  Item 41 does show he earned the National Defense Service Medal (NDSM); Vietnam Service Medal (VSM); Combat Infantryman Badge (CIB), RVN Campaign Medal with Device 1960, Army Commendation Medal, Marksman Marksmanship Qualification Badge with Machinegun Bar, and 2 Overseas Service Bars.  
5.  The applicant's Military Personnel Records Jacket (MPRJ) contains no orders, or other documents that indicate he was ever recommended for, or awarded the PH.  The MPRJ is also void of any medical treatment records indicating he was ever treated for a combat-related wound.

6.  The applicant's MPRJ contains the following orders issued by Headquarters, United States Army Training Center, Infantry and Fort Lewis, Fort Lewis, Washington, which confirm the applicant’s qualification with the weapons indicated:  Special Orders Number 217, dated 5 August 1968, authorized the Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar; Special Orders Number 268, dated 25 September 1968, authorized the Marksman Marksmanship Qualification Badge Rifle (M-16) Bar; and Special Orders Number 270, dated 27 September 1968, authorized the Marksman Marksmanship Qualification Badge with Automatic Rifle Bar.

7.  The MPRJ also contains Headquarters, Americal Division, General Orders Number 13280, dated 29 December 1969.  These orders announced the applicant’s award of the Air Medal (AM) for meritorious achievement while participating in aerial flight.

8.  On 23 June 1970, the applicant was honorably released from active duty after completing a total of 2 years active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued at the time shows he earned the following awards:  NDSM; CIB, VSM with 2 bronze service stars; RVNCM with Device 1960; and the ARCOM.  The PH is not included in the list of awards 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.  

9.  The applicant provides a VA Rating Decision, dated 6 January 1969, which indicates that he was assigned a service-connected 10 percent evaluation for residuals of shell fragment wound to his right knee.

10.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant's name is not included on this casualty list.  

11.  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 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, the awards regulation stipulates that it is necessary to establish that the wound, for which the award is being made, 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.  This regulation also provides that there are no time limitations for requests for award of the PH.

12.  Paragraph 2-13 of the awards regulation contains guidance on award of 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.  

13.  Table B-1 of the awards regulation contains a list of campaigns and it shows that during the applicant’s tenure of assignment in the RVN, campaign credit was granted for the Vietnam Counteroffensive Phase V, Vietnam Counteroffensive Phase VI, TET 69 Counteroffensive, Vietnam Summer-Fall 1969, and the Vietnam Winter-Spring 1970 campaigns.

14.  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, the 23rd Administration Company, received the Meritorious Unit Commendation and Company B, 4th Battalion, 3rd Infantry Regiment earned the RVN Gallantry Cross with Palm Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH and the supporting documents he provided were carefully considered.  However, by regulation, in order to support award of 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, and that the wound required treatment by military medical personnel.

2.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action.  His MPRJ is void of any orders, or documents that show he was ever recommended for, or awarded the PH by proper authority while serving on active duty.  There are no medical treatment records on file that indicate he was ever treated for a combat related wound or injury.  Further, the PH is not included in the list of awards contained on his separation document, which he authenticated 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 the DD Form 214 was prepared and issued.  In addition, his name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  

3.  The veracity of the applicant's claim that he injured his knee while serving in the RVN is not in question.  However, absent any evidence of record showing that the applicant's injury was received as a result of enemy action, or that he was ever treated for a combat-related wound or injury by military medical personnel while serving in the RVN, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  As a result there is an insufficient evidentiary basis to support awarding him the PH at this time.  

4.  Records show the applicant should have discovered the alleged error or injustice related to award of the PH now under consideration on 23 June 1970, the date of his separation.  Therefore, the time for him to file a request for correction of any error or injustice expired on 22 June 1973.  However, 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.

5.  The applicant's record does show that in addition to the awards listed on
his separation document, he is entitled to AM, RVN Gallantry Cross with Palm Unit Citation, 1 silver service star with his Vietnam Service Medal, Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar, and Marksman Marksmanship Qualification Badge with Machinegun and Automatic Rifle Bars.  The omission of these awards is an administrative matter that does not require Board action.  As a result, the Case Management Support Division (CMSD), 
St. Louis, Missouri, will correct his record as outlined in paragraph 3 of the 
BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JEV__  __PHM__  __GJP __  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 showing his entitlement to the Air Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, 1 silver service star with his Vietnam Service Medal, Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar, and Marksman Marksmanship Qualification Badge with Machine Gun and Automatic Rifle Bars; and by providing him a correction to his separation document that reflects these awards.




_____James E. Vick_______
          CHAIRPERSON


INDEX

CASE ID
AR20060011991
SUFFIX

RECON
NA
DATE BOARDED
2007/04/24
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1970/06/23
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON
Expiration Term of Service
BOARD DECISION
DENY with Note
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
107.0015
2.

3.

4.

5.

6.