RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 May 2007
      DOCKET NUMBER:  AR20060015049


      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. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Ms. Rose M. Lys                   |     |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, that her deceased husband, a former
service member (FSM), be awarded the Purple Heart (PH).

2.  The applicant states, in effect, the FSM was wounded in combat in the
Republic of Vietnam (RVN) and never received the PH.  She claims the FSM
received a shrapnel wound to the left eye.

3.  The applicant provides the following documents in support of her
application:  Doctor's Statement, dated 15 April 1999; FSM's Death
Certificate; and Department of Veterans Affairs (VA) Rating Decision with
associated documents and medical treatment records for 1981 through 1999.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 17 March 1971, the date of the FSM's release from active
duty (REFRAD) for retirement.  The application submitted in this case is
dated
16 October 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 FSM's record shows he served on active duty for 20 years, 1 month
and 25 days from 23 January 1951 through 17 March 1971, at which time he
was honorably REFRAD for retirement by reason of physical disability.

4.  The FSM's Enlisted Qualification Record (DA Form 20) shows, in Item 31
(Foreign Service), that he completed two overseas tours in Korea:  the
first from 3 December 1952 through 31 January 1954; and the second from 16
October 1962 through 31 October 1963.  It also shows that he served in the
RVN from
3 June 1966 through 2 June 1967 and from 20 March 1968 through 22 May 1968.

5.  Item 38 (Record of Assignments) of the FSM's DA Form 20 shows that
during his first RVN tour, he was assigned to Headquarters Battery and
Battery B of the 3rd Battalion, 18th Artillery Regiment, performing duties
in MOS 63C (Motor Sergeant); and that during his second tour in the RVN, he
was assigned to the 225th Aviation Company, performing duties in MOS 63C as
a motor sergeant.

6.  Item 39 (Campaigns) of the FSM's DA Form 20 shows that he was credited
with participating in the Third Korean Winter and Korean Summer-Fall
campaigns in Korea and in the Vietnam Counteroffensive Campaign Phase I,
Vietnam Counteroffensive Phase II, Vietnam Counteroffensive Phase III, TET
Counteroffensive, and Vietnam Counteroffensive Phase IV campaigns in the
RVN.

7.  Item 40 (Wounds) of the FSM's DA Form 20 is blank, and Item 41 (Awards
and Decorations) shows he earned the following awards during his active
duty tenure:  National Defense Service Medal (NDSM) 1st Oak Leaf Cluster;
Korean Service Medal (KSM); United Nations Service Medal (UNSM); Vietnam
Service Medal (VSM); RVN Campaign Medal; and Army Good Conduct Medal (AGCM)
5th Award.  The PH is not included in the list of awards contained in Item
41, and the FSM last audited the DA Form 20 on 12 March 1971.

8.  The FSM's Military Personnel Records Jacket is void of any orders or
other documents that indicate he was ever recommended for or awarded the PH
while serving on active duty.  It also contains no medical treatment
records that indicate he was ever wounded as a result of enemy action, or
that he was ever treated for a combat related wound or injury.

9.  The FSM's military personnel records jacket (MPRJ) does contain
documentary evidence that confirms he was processed for separation through
the Army Physical Disability Evaluation System (PDES) based on the
disabling back condition of "Intervertebral disc syndrome", and that he was
retired by reason of disability with a combined disability rating of 60
percent.  The medical board documentation on file makes no reference to a
combat related shrapnel wound.

10.  On 17 March 1971, the FSM was honorably REFRAD for the purpose of
disability retirement.  The separation document (DD Form 214) he was issued
at the time does not include the PH in Item 24 (Decorations, Medals,
Badges, Commendations, Citations and Campaign Ribbons Awarded or
Authorized), and the FSM authenticated this document with his signature in
Item 32 (Signature of Person Being Transferred or Discharged) on the date
of his separation.

11.  The applicant provides a VA Rating Decision on the FSM, dated 8 July
1997, which shows he received service connection for a shrapnel wound to
the left eye with defective vision on 1 May 1992.  This document provides
no indication that military medical treatment records were used in arriving
at this determination or that there were any medical treatment records
confirming this wound was received as a result of enemy action.

12.  During the processing of this case, a member of the Board staff
reviewed the Department of the Army (DA) Vietnam Casualty Roster.  There
was no entry pertaining to the applicant on this roster.

13.  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 the wound for
which the award is being made was received as a result of enemy action,
that the wound required treatment by military medical personnel, and a
record of this medical treatment must have been made a matter of official
record.

14.  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.  A silver service star is used in lieu of 5
bronze service stars to denote participation in five campaigns.

15.  Table B-1 of the awards regulation contains a list of RVN campaigns.
It shows that during the applicant's tenure of assignment in the RVN,
participation credit was granted for the Vietnam Counteroffensive Phase I,
Vietnam Counteroffensive Phase II, Vietnam Counteroffensive Phase III, TET
Counteroffensive, Vietnam Counteroffensive Phase IV campaigns.

16.  Paragraph 2-20 of the awards regulation contains guidance on the Korea
Defense Service Medal (KDSM).  It states, in pertinent part, that it is
authorized to members who served in Korea for 30 consecutive or 60 non-
consecutive days from 28 July 1954 to a date to be determined by the
Secretary of Defense.

17.  Paragraph 5-6 of the awards regulation contains guidance on the KSM.
It states, in pertinent part, that a bronze service star is authorized with
this award for each Korea campaign a member was credited with participating
in.

18.  Paragraph 9-16 of the awards regulation contains guidance on the
Republic of Korea- Korean War Service Medal (ROK-KWSM).  It states, in
pertinent part, that it is authorized to members who served in Korea for 30
consecutive days between 25 June 1950 and 27 July 1953.

19.  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 contention that the FSM should be awarded the PH for a
shrapnel wound he received in the RVN was carefully considered.  However,
by regulation, in order to support award of the PH, there must be evidence
that the wound for which the award is being made was received as a result
of enemy action, that it required treatment by military medical personnel,
and this treatment must have been made a matter of official record.

2.  In this case, the FSM's MPRJ is void of any orders or other documents
that indicate he was ever recommended for or awarded the PH by proper
authority while serving on active duty.  Further, there are no medical
treatment records on file that show the FSM was ever treated for a combat
related wound or injury while he was serving in the RVN.

3.  Item 40 of the FSM's DA Form 20 is blank, which indicates he was never
wounded in action, and the PH is not included in the list of authorized
awards contained in Item 41.  The FSM last audited the DA Form 20 on 12
March 1971, during his retirement processing.  In effect, this audit was
his verification the information on the DA Form 20, to include that Item 40
and Item 41 were correct at that time.

4.  Further, the PH is not included in the list of awards contained in Item
24 of the FSM's final DD Form 214, and he authenticated this document with
his signature in Item 32 on the date of his separation.  In effect, his
signature was his verification that the information contained on the
separation document was correct at the time it was prepared and issued.
Finally, the FSM's name is not included on the Vietnam Casualty Roster, the
official DA list of RVN battle casualties.

5.  The veracity of the applicant's claim that the FSM received a shrapnel
wound to the left eye while serving in the RVN, and of the information
contained in the VA Rating Decision is not in question.  However, absent
any evidence of record to confirm that this injury was received as a result
of enemy action, the regulatory burden of proof necessary to support award
of the PH has not been satisfied in this case, and the applicant's request
must be denied in the interest of all those who served in the RVN and who
faced similar circumstances.

6.  Records show the alleged error or injustice related to award of the PH
now under consideration should have been discovered on 17 March 1971, the
date of the FSM's retirement.  Therefore, the time to file a request for
correction of any error or injustice expired on 16 March 1974.  No
application was filed within the 3-year statute of limitations and the
applicant 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.  Evidence shows that based on his service in Korea, the FSM is entitled
to the
ROK-KWSM, KDSM, and 2 bronze service stars with his KSM.  It also shows
that based on his service in the RVN, he is entitled to the RVN Gallantry
Cross with Palm Unit Citation and 1 silver service star with his VSM.  The
omission of these awards from his 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 record as
outlined in paragraph 3 of the BOARD DETERMINATION/RECOMMENDATION section
below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RTD     __MJF __  __RML __  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 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 Korea-
Korean War Service Medal, Korea Defense Service Medal, 2 bronze service
stars with his Korean Service Medal, Republic of Vietnam Gallantry Cross
with Palm Unit Citation and 1 silver service star with his Vietnam Service
Medal; and by providing a correction to the separation document that
includes these changes.




                                  _____Richard T. Dunbar___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060015049                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/05/03                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1971/03/17                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability                              |
|BOARD DECISION          |DENY with Note                          |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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