RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 March 2007
      DOCKET NUMBER:  AR20060012769


      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. Lester Echols                 |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 was wounded in March 1969, while
serving in the Republic of Vietnam (RVN).  He claims he was wounded by a
mortar blast in the middle of the night during an operation in the jungle.
He indicates that he was treated by Medical Corpsmen (MEDICs) in the field
and by doctors in the RVN, but never received the PH.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 16 July 1969, the date of his release from active duty.
The application submitted in this case is dated 25 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 shows he was inducted into the Army and entered active
duty on 1 November 1967.  He was trained in, awarded, and served in
military occupational specialty (MOS) 11D (Armor Intelligence Specialist),
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 24 July 1968 through 13 July 1969.  Item 38 (Record
of Assignments) shows that during his RVN tour, he was assigned to Troop A,

4th Squadron, 12th Cavalry Regiment, performing duties in MOS 11D as a
scout observer.

5.  Item 40 (Wounds) of the applicant's DA Form 20 is blank, and the PH is
not included in the list of authorized awards contained in Item 41 (Awards
and Decorations).  The applicant’s DA Form 20 also shows that on 3 April
1969, he was reduced from SP4 to private first class (PFC) for cause.

6.  The applicant's Military Personnel Records Jacket (MPRJ) is void of any
orders or other documents that show the applicant was ever recommended for
or awarded the PH by proper authority while serving on active duty.  It
also contains no medical treatment records that show he was ever treated
for a combat-related wound while serving in the RVN.  The MPRJ does include
a Report of Medical History (SF 89) and Report of Medical Examination
(SF88) completed on the applicant during his separation processing.  There
is no indication in either of these forms that the applicant was ever
wounded in action, or treated for a combat-related wound while serving on
active duty.  He was medically cleared for separation by the examining
physician after receiving a Physical Profile of 111111.

7.  On 16 July 1969, the applicant was honorably released from active duty
after completing a total of 1 year, 8 months, and 15 days of active
military service.  The separation document (DD Form 214) he was issued at
the time confirms he was separated in the rank of PFC and that he earned
the following awards during his active duty tenure:  National Defense
Service Medal; Vietnam Service Medal (VSM); RVN Campaign Medal with 60
Device; Combat Infantryman Badge; Sharpshooter Marksmanship Qualification
Badge with Rifle (M-14 & M16) Bar; Marksman Marksmanship Qualification
Badge with Machinegun Bar; and
2 Overseas Service Bars.

8.  During the processing of this case, a member of the Board staff
reviewed the Department of the Army Vietnam Casualty Roster and found no
entry 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, 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.  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 (4th Squadron, 12th Cavalry
Regiment) received the RVN Gallantry Cross with Palm Unit Citation.  It
also shows that during this period, credit was granted for the Vietnam
Counteroffensive Phase V, Vietnam Counteroffensive Phase VI, TET 69
Counteroffensive, and the Vietnam Summer-Fall campaigns.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of entitlement to the PH based on being wounded
in action in the RVN in March 1969 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.  The applicant's record is void of any orders or documents showing he
was ever recommended for or awarded the PH by proper authority while
serving on active duty.  There are also no medical treatment records on
file showing he was ever treated for a wound he received as a result of
enemy action while serving on active duty.

3.  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.  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.

4.  The veracity of the applicant's claim that he was wounded in the RVN is
not in question.  However, absent any evidence of record that confirms he
wounded as a result of enemy action, that he treated for a combat related
wound by military medical personnel, or that he was 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.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH now under consideration on 16 July
1969, the date of his separation.  Therefore, the time for him file a
request for correction of any error or injustice expired on 15 July 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.

7. 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 4 bronze service stars with his VSM.  The omission
of these awards from his record and separation document is an
administrative matter that does not require Board action.  Thus, the Case
Management Support Division (CMSD), St. Louis, Missouri, will correct his
records as outlined in paragraph 3 of the BOARD
DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LE  __  __LMB __  __MJF __  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 and 4 bronze service stars with his
Vietnam Service Medal.




                                  _____Lester Echols_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR200600122769                          |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/03/27                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1969/07/16                              |
|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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