RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 May 2007
      DOCKET NUMBER:  AR20060015780


      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      |
|     |Ms. Loretta D. Gulley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. Gerald J. Purcell             |     |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 award of the Purple Heart with 1st oak leaf
cluster.

2.  The applicant states, in effect, that he should be awarded the Purple
Heart with 1st oak leaf cluster for injuries he received while actively
engaged with the enemy while in the Republic of Vietnam.

3.  The applicant provided a copy of his DD form 214 (Armed Forces of the
United States Report of Transfer or Discharge), copies of his DD Form 215
(Correction to DD Form 214) and a copy of SF Form 600 (Chronological Record
of Medical Care).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 15 May 1972.  The application submitted in this case is
dated
31 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 DD Form 214 shows that he enlisted into the Regular
Army on
16 May 1969.  He was awarded the military occupational specialty (MOS) 11E
(Armor Crewman).  The highest rank he attained while serving on active duty
was Staff Sergeant (SSG).

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows that
he served in the Republic of Vietnam (RVN) from 18 July 1969 through 13
July 1970, and that during his RVN tour he was assigned to the 1st
Battalion 77th Infantry Regiment, 5th Infantry Division, performing duties
in MOS 11E, Assistant Tank Commander.

5.  Item 39 (Campaigns) of the applicant's DA Form 20 shows that he
participated in the Vietnam Summer-Fall 1969, the Vietnam Winter-Spring
1970, and the Vietnam Counteroffensive, Phase VII campaigns.
6.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows
that he earned the National Defense Service Medal (NDSM), the Vietnam
Service Medal (VSM), the Republic of Vietnam Campaign with “60” Device, two
overseas service bars, and the Sharpshooter Marksmanship Qualification
Badge with Rifle Bar (M-14).

7.  On 15 May 1972, the applicant was honorably released from active duty
after completing a total of 3 years of active military service.  The DD
Form 214 he was issued shows he earned the following awards during his
active duty tenure:  the National Defense Service Medal, the Vietnam
Service Medal w/3 bronze service stars, the RVNCM w/60 Device, 2 Overseas
Service Bars, the Army Commendation Medal, and the Sharpshooter
Marksmanship Rifle Qualification Badge with Rifle Bar (M-14).

8.  The DD Form 215 (Correction to the DD Form 214, dated 7 February 1974,
shows that the applicant received a Bronze Star Medal and a Good Conduct
Medal.

9.  Item 5 of the DD Form 215, dated 12 January 2006, shows that he
received a Valorous Unit Award and a Purple Heart.

10.  Permanent Order Number 297-03, U.S. Army Human Resources Command,
Alexandria, Virginia, dated 24 October 2005, shows that the applicant was
awarded the Purple Heart for injuries received on 24 September 1969.

11.  The SF Form 600, dated 8 May 1970, shows that the applicant received
treatment for a laceration on his right leg resulting from being hit by an
exploding 50 caliber machinegun on 26 April 1970, but the SF Form 600 does
not show that he sustained injuries as a result of hostile action or that
his treatment was for wounds sustained as a result of hostile action.

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent
part, that the Purple Heart is awarded for a wound sustained as a result of
hostile action.  Substantiating evidence must be provided to verify that
the wound was the result of hostile action, the wound must have required
treatment by a medical officer, and the medical treatment must have been
made a matter of official record.  This regulation also provides that there
are no time limitations on requests for award of the Purple Heart.



13.  Army Regulation 600-8-22, paragraph 2-8f states, in pertinent part,
that when contemplating an award of the Purple Heart, the key issue that
commanders must take into consideration is the degree to which the enemy
caused the injury.  The fact that the applicant was participating in direct
or indirect combat operation is a necessary prerequisite, but is not sole
justification for award.  Paragraph 2-8h(7) of this same regulation states,
in pertinent part,
that an example of an injury or wound which clearly does not qualify for
award of the Purple Heart is an accident, to include explosive, aircraft,
vehicular, and other accidental wound not related to or caused by enemy
action.

14.   A  review  of  the  applicant’s  records  indicates   entitlement   to
additional awards and decorations that are not shown on his DD Form 214.

15.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign
Participation Credit Register) lists the unit awards received by units
serving in Vietnam.  This document shows the unit, to which the applicant
was assigned, the 1st Battalion 77th Infantry Regiment, was cited for award
of the Republic of Vietnam Gallantry Cross with Palm Unit Citation for the
period May 1969 to February 1970 by Department of the Army General Orders
Number 11, dated 1973.

16.  Department of the Army Pamphlet 672-3 also shows that at the time of
the applicant’s assignment to the 1st Battalion, 77th Infantry Regiment, it
was cited for award of the Republic of Vietnam Civil Actions Honor Medal
First Class Unit Citation by Department of the Army General Orders Number
42, dated 1970.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to a second award of the
Purple Heart.

2.  There is no evidence in the applicant’s service personnel records which
shows that he was wounded by hostile action on 26 April 1970.  The
applicant is not listed on the Vietnam Casualty Roster as being wounded by
hostile action on 26 April 1970.  In the absence of such evidence, there is
insufficient basis to grant a second award of the Purple Heart.

3.  Orders Number 11, dated 1973, show the 1st Battalion, 77th Infantry
Regiment was awarded the Republic of Vietnam Gallantry Cross with Palm Unit
Citation which is not shown on his separation document.  Therefore, he is
entitled to correction of his records to show this award.

4.  General Orders Number 42, dated 1972, show the 1st Battalion, 77th
Infantry Regiment was awarded the Republic of Vietnam Civil Actions Honor
Medal, First Class, Unit Citation which is not shown on his separation
document.  Therefore, he is entitled to correction of his records to show
this award.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 May 1972; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 14 May 1975.  Although the applicant did not file within the
ABCMR's statute of limitations, it is appropriate to waive failure to
timely file based on the fact there is no time limitation on requests for
award of the Purple Heart.

6.  The record confirms the applicant is entitled to the RVN Gallantry
Cross with Palm Unit Citation and the Republic of Vietnam Civil Actions
Honor Medal First Class Unit Citation.  The omission of these awards from
his record is an administrative matter that does not require Board action.
As a result, the Case Management Support Division (CMSD), St. Louis,
Missouri will be requested to make the necessary corrections as outlined in
paragraph 3 of the BOARD DETERMINITON/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

_______  _________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___YM___  ___LMD _  __GJP___DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that it was appropriate to waive failure to timely
file in this case.

2.  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 to show award of the Purple Heart with
1st oak leaf cluster.


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 award of the RVN Gallantry Cross with Palm Unit Citation
and the Republic of Vietnam Civil Actions Honor Medal First Class Unit
Citation.




                              ___Yolanda Maldonado___
                                      CHAIRPERSON
                                    INDEX

|CASE ID                 |AR20060015780                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/05/15                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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