RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 June 2007
      DOCKET NUMBER:  AR20060016959


      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. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Joe R. Schroedor              |     |Member               |
|     |Mr. Chester A. Damian             |     |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 received shrapnel wounds from
incoming enemy fire in the Republic of Vietnam (RVN) in January 1970, and
believes this entitles him to the PH.

3.  The applicant provides the following documents in support of his
application:  Separation Document (DD Form 214); Medical Treatment Records;
RVN Assignment Orders; and Personnel Records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 2 February 1972, the date of his release from active duty
(REFRAD). The application submitted in this case is dated 20 November 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 31 July 1969.  He was trained in, awarded, and
served in military occupational specialty (MOS) 64C (Truckmaster) 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 9 January 1970 through 8 August 1971.  Item 38
(Record of Assignments) shows that during his RVN tour, he was assigned to
the 585th Transportation Company, performing duties in MOS 64C as a heavy
truck driver.

5.  Item 40 (Wounds) of the applicant's DA Form 20 is blank and the PH is
not included in the list of awards contained in Item 41 (Awards and
Decorations).  The applicant last audited the DA Form 20 on 1 October 1971.


6.  The applicant's Military Personnel Records Jacket 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.  There are also no
medical treatment records or other documents on file that indicate he was
ever treated for a combat related wound or injury while serving in the RVN.


7.  On 2 February 1972, the applicant was honorably REFRAD after completing
a total of 2 years, 6 months and 2 days of active military service.  Item
24 (Decorations, Medals, Badges, Commendations, Citations and Campaign
Ribbons Awarded or Authorized) of the DD Form 214 he was issued at the time
shows he earned the following awards during his active duty tenure:
National Defense Service Medal; Vietnam Service Medal; RVN Campaign Medal
with
60 Device; Marksman Marksmanship Qualification Badge with Rifle (M-14) Bar;
and Expert Marksmanship Qualification Badge with Rifle (M-16) Bar.  The PH
is not included in the list of awards contained in Item 24 and the
applicant authenticated this document with his signature in Item 32
(Signature of Person Being Transferred or Discharged) on the date of his
REFRAD.

8.  The applicant provides a Chronological Record of Medical Care (SF 600)
that shows on 13 March 1970, he was treated for shrapnel wounds to his legs
he received on 22 January 1970.  He also provides a Clinical Record Cover
Sheet (DA Form 8-275-3), dated 27 January 1970, which shows the applicant
received fragment wounds to both buttocks, both legs and his right side.
This form also contains an entry that states on 22 January 1970, the
applicant's company area was hit by fragments from an explosion of unknown
origin.  He also provides an SF 600 that shows on 1 November 1971, he was
treated for a gunshot wound he received in the RVN in January 1970 and a
Clinical Record, dated 18 October 1971, that shows he had old shrapnel
wounds.  None of these treatment records indicate the applicant's wounds
were received as a result of enemy action.

9.  During the processing of this case, a member of the Board staff
reviewed the Department of the Army Casualty Roster.  The applicant's name
was not included on this RVN battle casualty list.

10.  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.
11.  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 RVN campaign a member is credited with participating
in.  Table B-1 of the same regulation contains a list of RVN campaigns.  It
shows that during the applicant’s tenure of assignment, campaign credit was
awarded for the Vietnam Winter-Spring 1970, Sanctuary Counteroffensive,
Vietnam Counteroffensive Phase VII, and Consolidation I campaigns.

12.  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 he is entitled to the PH based on being
wounded in action in the RVN in January 1970 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
direct result of, or was caused by enemy action.  Although the applicant
provides medical treatment records that show he was treated for shrapnel
wounds he received in January 1970 in the RVN, these forms contain no
indication that the wounds were received as a result of enemy action.  To
the contrary, the DA Form 8-275-3 provided by the applicant contains an
entry confirming the shrapnel wounds he received in January 1970 in the RVN
were from an explosion in his company area from an unknown source.

2.  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 entered.  The applicant last audited the DA Form 20 on 1
October 1971, after his departure from the RVN.  In effect, this audit was
his verification that the information contained on the record, to include
the Item 40 and Item 41 entries, was correct at that time.  His MPRJ is
void of any orders, or other documents showing that he was ever recommended
for, or awarded the PH by proper authority during his tenure on active
duty, and it contains no medical treatments records that indicate he was
ever treated for a combat related wound that he received as a result of
enemy action while he was serving on active duty.

3.  Further, the list of authorized awards contained in Item 24 of the
applicant's DD Form 214 does not include the PH, and he authenticated this
document with his signature on the date of his separation.  In effect, his
signature was his verification that the information contained on the
separation document, to include the list of awards, was correct at the time
it was prepared and issued.
4.  Finally, the applicant's name is not included on the Vietnam Casualty
Roster, the official DA list of RVN battle casualties.  Absent any evidence
that the fragment wounds he was treated for were 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.

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 8 May 1970,
the date of his discharge.  Therefore, the time for him to file a request
for correction of any error or injustice expired on 7 May 1973.  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 record confirms 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 Vietnam Service
Medal.  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

__LDS __  __JRS___  __CAD__  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 Vietnam
Gallantry Cross with Palm Unit Citation and 4 bronze service stars with his
Vietnam Service Medal; and by providing him a correction to his separation
document that includes these changes.




                                  _____Linda D. Simmons__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060016959                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/06/08                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1972/02/02                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Secretarial Authority                   |
|BOARD DECISION          |DENY with Note                          |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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