RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060012736 


	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.


x

	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 was wounded by friendly fire.  He further states that he feels that since he was wounded while serving in the military, he should have been awarded the PH.

3.  The applicant provides his Separation Document (DD Form 214) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 1 January 1969.  The application submitted in this case is dated 
22 November 2005; however, it was received for processing on 23 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 10 January 1967.  He was trained in, awarded, and served in military occupational specialty (MOS) 41J (Office Equipment Repairman), 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 17 January 1968 through 2 January 1969.  It further shows that during his RVN tour, he was assigned to the 79th Maintenance Battalion, from 
21 January 1968 through 17 March 1968, performing duties in MOS 54A as a decontaminate equipment helper; and to the 5th Light Equipment Maintenance Company, from 18 March 1968 through 30 December 1968, performing duties in MOS 54A as a decontaminate equipment helper and MOS 41J as an office machine repairman.  Item 40 (Wounds) is blank, and the list of authorized awards contained in Item 41 (Awards and Decorations) does not include the PH. 
5.  Item 41 of the applicant's DA Form 20 does show he earned the National Defense Service Medal (NDSM); Vietnam Service Medal (VSM); RVN Campaign Medal with Device 1960; 2 Overseas Bars; and Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar.  His Military Personnel Records Jacket (MPRJ) is void of any orders or other documents that indicate he was ever wounded in action, or awarded the PH by proper authority while serving on active duty.  His record is also void of any medical treatment records showing he was treated for a combat-related wound or injury during his active duty tenure.  

6.  On 1 January 1969, the applicant was honorably released from active duty after completing a total of 1 year, 11 months, and 22 days of active military service.  The DD Form 214 he was issued at that time shows he earned the following awards:  NDSM; VSM; RVNCM with Device 1960.  The applicant authenticated this DD Form 214 with his signature on the date of his release from active duty.

7.  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 was not included on this list.  

8.  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 in order to award a PH there must be evidence that a member was wounded or injured as a result of enemy action.  The wound or injury for which the PH is being awarded must have required treatment by a medical officer; this treatment must be supported by medical treatment records that were made a matter of official record.  The regulation authorizes the PH to members killed or wounded in action by friendly fire under the same criteria as members wounded as a result will be treated the same as members who are killed or wounded as the result of an act of an enemy of the United States.  The criteria is the same and the friendly fire must have occurred while a member was directly engaged in armed conflict.  

9.  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 RVN campaign a member is credited with participating in.  

10.  DA Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that during the applicant’s tenure of assignment in the RVN, his units were awarded the Meritorious Unit Commendation and Republic of Vietnam 
Gallantry Cross with Palm Unit Citation.  It also confirms that during this period, 
participation credit was granted for the TET Counteroffensive, Vietnam Counteroffensive Phase IV, Vietnam Counteroffensive Phase V, and Vietnam Counteroffensive Phase VI campaigns.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he is entitled to the PH based on wounds 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 confirming that the wound for which the award is being made 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 medical treatment must have been made a matter of official record.  

2.  There are no orders, or other documents on file in the applicant’s MPRJ indicating he was ever wounded in action, or that he was ever recommended for or awarded the PH by proper authority while serving on active duty.  Further, his record is void of any medical treatment records showing he was ever treated for a combat related wound or injury.  Item 40 of his DA Form 20 is blank, indicating he was never wounded or injured in action, and the PH is not included in the list of awards contained in Item 41.  Further, the PH is not included in the list of 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 separation document, to include the list of awards, was correct at the time the separation document was prepared and issued.  In addition, the applicant's 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 wounded by friendly fire is not in question.  However, absent evidence to corroborate his claim that he was wounded in action by friendly fire, or that shows he was ever treated for a combat related wound 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.  The evidence of record does show that based on his RVN service and campaign participation, the applicant is entitled to the Meritorious Unit Commendation, RVN Gallantry Cross with Palm Unit Citation, and 4 bronze service stars with his VSM.  His record also shows he received the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.



5.  Records show the applicant should have discovered the alleged error or injustice related to award of the PH now under consideration on 1 January 1969, the date of his separation from active duty.  Therefore, the time for him to file a request for correction of any error or injustice related to this issue expired on 
31 December 1972.  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 omission of the awards listed in the preceding paragraph from his record is an administrative matter that does not require Board action.  Thus, his record will be corrected by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined in paragraph 3 of the BOARD DETERMINATION/ RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_  __x_  __x___  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 there are administrative matters that should be corrected.  Thus, the Board requests that CMSD-St. Louis correct the records of the individual concerned to show his entitlement to the Meritorious Unit 
Commendation, Republic of Vietnam Gallantry Cross with Palm Unit Citation, 
4 bronze service stars with his already-awarded Vietnam Service Medal, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar; and by providing him a correction to his separation document that includes these awards.




_____x___
          CHAIRPERSON




INDEX

CASE ID
AR200600122736
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/03/13
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1969/01/01
DISCHARGE AUTHORITY
AR635-200 . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY with Note
REVIEW AUTHORITY
Mr. Swartz
ISSUES         1.
107
2.

3.

4.

5.

6.