RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 March 2007
      DOCKET NUMBER:  AR20060012005


      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. James E Anderholm             |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Mr. Roland S. Venable             |     |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, that while serving in the Republic of
Vietnam (RVN), he fractured his right ankle on 13 August 1970; he received
metal/glass
in his left eye in 1970; and he was hit in the groin area with shrapnel in
1971.  He claims he was wounded in war time and should receive the PH.

3.  The applicant provides his separation document (DD Form 214) and a
photograph in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 19 April 1971, the date of his separation.  The
application submitted in this case is dated 19 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 enlisted in the Regular Army and
entered active duty on 8 September 1969.  He was trained in, awarded, and
served in military occupational specialty (MOS) 64A (Light Vehicle Driver),
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 5 February 1970 through 18 April 1971.  Item 38
(Record of Assignments) shows that during his RVN tour, he was assigned to
the 88th Transportation Company, performing duties in MOS 64B as a heavy
vehicle driver.  Item 40 (Wounds) is blank, and the PH is not included in
the list of authorized awards contained in Item 41 (Awards and
Decorations).

5.  The applicant's Military Personnel Records Jacket (MPRJ) is void of any
orders, or other documents, indicating that the applicant was ever wounded
in action, or that he was recommended for or awarded the PH by proper
authority while serving on active duty.
6.  The applicant's MPRJ also contains no medical treatment records that
indicate he was ever treated for a combat-related wound or injury while
serving on active duty.

7.  On 19 April 1971, the applicant was honorably separated after
completing
1 year, 7 months, and 12 days of active military service.  The DD Form 214
he was issued shows he earned the following awards during his active duty
tenure:  National Defense Service Medal (NDSM); Vietnam Service Medal
(VSM); RVN Campaign Medal; Sharpshooter Marksmanship Qualification Badge
with Rifle Bar; and 2 Overseas Bars.  The PH is not included with the list
of authorized awards and the applicant authenticated the DD Form 214 with
his signature on the date of his separation.

8.  The applicant provides two photographs, one showing him with an eye
bandage and the other showing him with an ankle cast.

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

10.  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 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, 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.

11.  Paragraph 2-13 of the awards regulation contains guidance on the
Vietnam Service Medal.  It states, in pertinent part, that 1 bronze service
star is authorized with this award for each RVN campaign a member is
credited with participating in.  Table B-1 of the awards regulation
contains a list of campaigns and shows that during his tenure of
assignment, campaign credit was granted for the Vietnam Winter-Spring 1970,
Sanctuary Counteroffensive, and Vietnam Counteroffensive Phase VII
campaigns.

12.  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 claim of entitlement to the PH based on three injuries
he received while serving in the RVN was carefully considered.  However, by
regulation in order to support award of the PH, there must be evidence that
the wound was received as a direct result of, or was caused by enemy
action, that the wound was treated by military medical personnel, and a
record of this treatment must have been made a matter of official record.


2.  Although the applicant provides photographs indicating that he received
injuries to his eye and ankle while serving in the RVN, his record gives no
indication that the was ever wounded as a result of enemy action, and there
are no medical treatment records on file showing he was ever treated for a
combat related wound or injury while serving on active duty.  Item 40 of
his 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.
Further, the PH is not included in the list of authorized awards contained
on his DD Form 214, 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 DD Form 214, to include the list of awards,
was correct when the time separation document was prepared and issued.
Finally, 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 was injured three
separate times while serving in the RVN is not in question.  However,
absent any evidence of record that confirms his injuries were received as a
result of enemy actions, that he was treated for these wounds by military
medical personnel at the time, or that he ever awarded the PH by proper
authority, while serving on active duty, the regulatory burden of proof
necessary to support award of the PH has not been satisfied in this case.


4.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH now under consideration on 19 April
1971, the date of his separation.  Therefore, the time for him file a
request for correction of any error or injustice expired on 18 April 1974.
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 evidence does show that based on his RVN service and campaign
participation, the applicant is entitled to the, RVN Gallantry Cross with
Palm Unit Citation, and 3 bronze service stars to be worn with his Vietnam
Service Medal.
6.  The omission of the awards outlined in the preceding paragraph from his
record and separation document is an administrative matter that does not
require Board action.  Therefore, the Case Management Support Division
(CMSD), St. Louis, Missouri, will administratively correct his records 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

__JEA __  ___SWF _  __RSV __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice related to award of the
Purple Heart.  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 3 bronze service stars with his Vietnam
Service Medal; and by providing him a correction to his separation document
that reflects these changes.




                                  _____James E. Anderholm____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060012005                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/03/06                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1971/04/19                              |
|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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