RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 June 2007
      DOCKET NUMBER:  AR20060015224


      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:

|     |Ms. Carmen Duncan                 |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Mr. Jeffrey C. Redmann            |     |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 his record be corrected to show
his entitlement to the Purple Heart (PH) and to the Medal of Honor (MOH).

2.  The applicant states, in effect, he was awarded the PH and MOH during
the time of his service.  He also claims, in effect, that Item 11c (Reason
and Authority) of his separation document (DD Form 214) be corrected by
eliminating the entry indicating he was in the hospital.  Although he was
hospitalized, he was released from the hospital in 1971.

3.  The applicant provides the following documents in support of his
application:  Department of Veterans Affairs (VA) Patient Treatment Status
Summary, dated 15 September 1999; Statement in Support of Claim (VA Form 21-
4138, dated
9 June 2005; Referral (NA Form 13060); VA Military History Form; and VA
Herbicide Exposure Form.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 21 October 1971, the date of his separation.  The
application submitted in this case is dated 20 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 applicant's record shows that he was inducted into the Army and
entered active duty on 4 March 1970.  He was trained in, awarded and served
in military occupational specialty (MOS) 62B (Engineer Equipment Repairer)
and the highest rank he attained while serving on active duty was
specialist five (SP5).

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows that
he served in the Republic of Vietnam (RVN) from 4 August 1970 through 8
October 1971.  Item 38 (Record of Assignments) shows that during his RVN
tour, he was assigned to the 577th Engineer Battalion, performing duties in
MOS 62B as a senior engineer equipment repairer.

5.  Item 40 (Wounds) of the applicant's DA Form 20 is blank and Item 41
(Awards and Decorations) does not include either the PH or MOH.  Item 41
does show the applicant earned the National Defense Service Medal (NDSM),
Vietnam Service Medal (VSM), RVN Campaign Medal with 1960 Device,
Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar, and
Expert Marksmanship Qualification Badge with Rifle (M-16) Bar during his
active duty tenure.

6.  The applicant's Military Personnel Records Jacket (MPRJ) is void of any
orders or other documents that show he was ever recommended for, or awarded
either the PH or MOH during his active duty tenure.  Further, there are no
medical treatment records on file that indicate he was ever treated for a
combat related wound while serving on active duty.

7.  Headquarters, Brooke Army Medical Center (BAMC), Fort Sam Houston,
Texas, Special Orders Number 222, dated 18 October 1971, assigned the
applicant to the Medical Holding Company (MHC), BAMC, effective 9 October
1971.  A Report of Medical History (SF 89), dated 15 October 1971, and a
Report of Medical Examination (SF 88), dated 18 October 1971, which were
prepared on him during his separation processing both show he was assigned
to BAMC.    Theapplicant indicated he was in good health in the SF 89 and
the SF 88 shows he was issued a 111111 Physical Profile and was determined
to be medically qualified for separation by the examining physician.

8.  On 21 October 1971, the applicant was honorably separated after
completing 1 year, 7 months, and 18 days of active military service and
transferred to the United States Army Reserve (USAR) Control Group.  The DD
Form 214 he was issued shows he was separated under the provisions of
Section VII, Army Regulation 635-200, by reason of the lack of intent to
reenlist when released from the hospital.  Item 24 (Decorations, Medals,
Badges, Commendations, Citations and Campaign Ribbons Awarded or
Authorized) shows that he earned the following awards during his active
duty tenure:  NDSM; VSM; RVN Campaign Medal; and Sharpshooter Marksmanship
Qualification Badge with Rifle Bar.  The applicant authenticated the DD
Form 214 with his signature in Item 32 (Signature of Person Being
Transferred or Discharged) on the date of his separation.

9.  United States Army Reserve Components Personnel and Administration
Center (USARPERSCEN), St. Louis, Missouri, Letter Orders Number
02-1024062, dated 27 February 1976, directed the applicant's honorably
discharge from the USAR on 1 March 1976.

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

11.  Army Regulation 635-200, in effect at the time, provided provisions
for the early separation of members of medical holding detachments or
units, who upon completion of hospitalization, did not intend to
immediately enlist or reenlist in the Regular Army early in chapter 5,
Section VII.

12.  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
establishing 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 a record of this medical treatment must have been made a
matter of official record.

13.  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.  Table B-1 contains a list of RVN campaigns and
confirms that during the applicant's tenure of assignment, participating
credit was granted for the Vietnam Counteroffensive Phase VII and
Consolidation I campaigns.

14.  Paragraph 3-7 of the awards regulation provides guidance on award of
the MOH.  It states, in pertinent part, that it is awarded by the President
in the name of Congress to a person who, while a member of the Army,
distinguishes himself or herself conspicuously by gallantry and intrepidity
at the risk of his or her life above and beyond the call of duty while
engaged in an action against an enemy of the United States; while engaged
in military operations involving conflict with an opposing foreign force;
or while serving with friendly foreign forces engaged in an armed conflict
against an opposing armed force in which the United States is not a
belligerent party.  The deed performed must have been one of personal
bravery or self-sacrifice so conspicuous as to clearly distinguish the
individual above his comrades and must have involved risk of life.
Incontestable proof of the performance of the service will be exacted and
each recommendation for the award of this decoration will be considered on
the standard of extraordinary merit.
15.  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 his record shows be corrected by adding
the PH and MOH he earned while serving on active duty was carefully
considered.  However, there is insufficient evidence to support this claim.


2.  The applicant's record is void of any orders or other documents that
indicate he was ever recommended for or awarded either the PH or MOH by
proper authority while serving on active duty.  Further, there are no
documents on file or provided by the applicant that provide incontestable
proof that he performed a deed of personal bravery or self-sacrifice so
conspicuous as to clearly distinguish him above his comrades or that
involved risk to his life, as is required by regulation to support award of
the MOH.

3.  In addition, there are no medical documents on file that indicate the
applicant was ever treated for a combat related wound or injury while
serving on active duty and his name is not included on the Vietnam Casualty
Roster, the official
DA list of RVN battle casualties.  Item 40 of his DA Form 20 is blank,
which indicates he was never wounded in action, and the PH and MOH are not
included in the list of awards contained in Item 41, which indicates he was
not awarded these decorations by proper authority during his active duty
tenure. Finally, the PH and MOH are not included in the list of awards
contained in Item 24 of the applicant's separation document, 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 in Item 24, was correct at the time
the document was prepared and issued.

4.  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 regarding award of the
PH and/or MOH.  Therefore, there is an insufficient evidentiary basis to
support granting the requested relief.

5.  The evidence of record also shows that the applicant was separated
early while he was assigned to Brooke Army Medical Center, Fort Sam
Houston, Texas.  Therefore, absent any evidence to the contrary, it is
presumed the authority and reason for the applicant's separation was
properly listed in Item 11c of his DD Form 214.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration related to the PH, MOH and the authority
and reason for his separation on 21 October 1971, the date of his
separation.  Thus, the time for him to file a request for correction of any
error or injustice expired on 20 October 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.

7.  The evidence of record does show that the applicant earned the Expert
Marksmanship Qualification Badge with Rifle (M-16) Bar and that based on
his RVN service and campaign participation, he is entitled to the RVN
Gallantry Cross with Palm Unit Citation and 2 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.  Therefore,
the Case Management Support Division (CMSD), St. Louis, Missouri, will
administratively correct his record and separation document as outlined in
paragraph 3 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___CD __  __MJF __  __JCR___  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 the Purple Heart,
Medal of Honor and the authority and reason for his separation.  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, 2 bronze service stars with his Vietnam
Service Medal, and the Expert Marksmanship Qualification Badge with Rifle
(M-16) Bar; and by providing him a correction to his separation document
that includes these changes.




                                  _____Carmen Duncan____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060015224                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/06/07                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1971/10/21                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Early Release of Med Det Personnel      |
|BOARD DECISION          |DENY with Note                          |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  46   |107.0000                                |
|2.  1021                |100.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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