RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2007
	DOCKET NUMBER:  AR20060013226 


	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 on active duty in the Republic of Vietnam (RVN), he received an injury to his nose.  He states he received treatment for his injury, but never received the PH.  He now requests to be awarded the PH for this injury to his nose.  

3.  The applicant provides a Chronological Record of Medical Care (SF 600) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 7 January 1972.  The application submitted in this case is dated 
22 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 19 June 1969.  He was trained in, awarded, and served in military occupational specialty (MOS) 45E (Parachute Rigger), 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 11 May 1970 through 14 April 1971.  It further shows that during his RVN tour, he was assigned to the Company B, 426th Support and Service Battalion, 101st Airborne Division from 25 May 1970 through 10 April 1971, performing duties in MOS 43E as an air delivery support specialist. 


5.  Item 40 (Wounds) of the applicant's DA Form 20 is blank, and the list of authorized awards contained in Item 41 (Awards and Decorations) does not include the PH.  Item 41 does show he earned the National Defense Service Medal (NDSM), Parachutist Badge, Vietnam Service Medal (VSM), Bronze Star Medal (BSM), Army Commendation Medal (ARCOM), RVN Campaign Medal;
2 Overseas Bars; and Sharpshooter Marksmanship Qualification Badge with Rifle Bar while serving on active duty.  

6.  The applicant's 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.  

7.  On 30 December 1971, a Report of Medical Examination (SF 88) and a Report of Medical History (SF 93) was completed on the applicant for separation purposes. There is no indication on these documents that the applicant sustained a nose injury as a result of combat action.  

8.  On 7 January 1972, the applicant was honorably released from active duty after completing a total of 2 years, 6 months, and 19 days of active military service.  The DD Form 214 he was issued at that time shows he earned the following awards:  NDSM; VSM with 1 bronze service star; BSM; ARCOM; Parachutist Badge; RVN Campaign Medal; and 2 Overseas Service Bars.  The applicant authenticated this DD Form 214 with his signature on the date of his release from active duty.

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 was not included on this list.  

10.  The applicant provides a Chronological Record of Medical Care that shows he received a contusion to his nasal ridge.  This document further shows the applicant received the injury to his nasal ridge (nose) after being hit by the hook of a crane.  This treatment record gives no indication that the nose injury was received as a result of enemy action. 


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 in order to support award of the PH there must be evidence showing that wound for which the award is being made was received as a result of enemy action.  Paragraph 2-13 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.  

12.  DA Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that during the applicant’s tenure of assignment in the RVN, his unit (426th Supply and Service Company) was 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 Sanctuary and Vietnam Counteroffensive campaigns.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH and the supporting document he provided was carefully considered.  However, by regulation, in order to award the PH it is necessary to establish that the wound or injury for which the PH is being awarded was received as a direct result of, or was caused by enemy action. 

2.  There are no orders, or other documents on file in the applicant’s MPRJ indicating he was ever wounded in action, or recommended for or awarded the PH by proper authority while serving on active duty.  Item 40 of his DA Form 20 is blank, indicating he was never wounded or injured in action, and his name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  In addition, the PH is not listed 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 at the time the separation document was prepared and issued.  

3.  The veracity of the applicant’s claim that he was injured while serving in the RVN and the information contained in the medical treatment document he provided is not in question.  However, absent any evidence of record corroborating that the injury in question was received as a direct result of, or caused by enemy action, 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 7 January 1972. Therefore, the time for him to file a request for correction of any error or injustice expired on 6 January 1975.  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 of record does show that based on his RVN service and campaign participation, he is entitled to the Meritorious Unit Commendation, 
RVN Gallantry Cross with Palm Unit Citation and 2 bronze service stars with 
his VSM.  His record also confirms he received the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, which was not included on his separation document.  The omission of these awards from his record and separation document is an administrative matter that does not require Board action to correct.  Therefore, his records will be corrected by the Case Management Support Division (CMSD), St. Louis, Missouri, 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

___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 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 Meritorious Unit Commendation, Republic of Vietnam Gallantry Cross with Palm Unit Citation and 2 bronze service stars with his Vietnam Service Medal; and by providing him a correction to his separation document that includes these changes.  




_____x______
          CHAIRPERSON


INDEX

CASE ID
AR20060013226
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/03/29
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1972/01/07
DISCHARGE AUTHORITY
AR635-200 . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
107
2.

3.

4.

5.

6.