RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         7 June 2007
      DOCKET NUMBER:  AR20060017321


      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, award of the Purple Heart (PH).

2.  The applicant states, in effect, that he was wounded by a Punji Stick
and evacuated to orthopedics on 10 May 1969.

3.  The applicant provides a Chronological Record of Medical Care (SF 600)
and United States Army Field Medical Card (DD Form 1380) in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 7 August 1970, the date of his final
separation from active duty.  The application submitted in this case is
dated 4 December 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 initially inducted into the
Army and entered active duty on 28 September 1967.  He was trained in and
awarded military occupational specialty (MOS) 11B (Light Weapons
Infantryman) and the highest rank he attained while serving on active duty
was sergeant (SGT).

4.  On 5 August 1969, the applicant was honorably discharged for the
purpose of enlistment in the Regular Army.  The separation document (DD
Form 214) he was issued at the time shows he completed 9 months of
creditable active military service and that he held the rank of private
first class (PFC) at the time.

5.  On 6 August 1969, the applicant reenlisted for six years.  His Enlisted
Qualification Record (DA Form 20) shows he served in the Republic of
Vietnam (RVN) from 11 March 1968 through 29 August 1969.  Item 38 (Record
of Assignments) shows that during his RVN tour, he was assigned to Troop C,
1st Squadron, 9th Cavalry Regiment, 1st Cavalry Division, serving in MOS
11B as a rifleman, senior rifleman, and squad leader.
6.  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 13 April 1970.


7.  The applicant's Military Personnel Records Jacket (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 that show he was ever treated for a
combat related wound or injury during his active duty tenure.

8.  On 7 August 1970, the applicant was separated with a general, under
honorable conditions discharge, by reason of unsuitability.  The DD Form
214 he was issued at the time shows he completed a total of 2 years, 1
month, and
8 days of creditable active military service and that he accrued 72 days of
time lost due to being absent without leave (AWOL) and in confinement.

9.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and
Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214
shows he earned the following awards during his active duty tenure:
National Defense Service Medal; Vietnam Service Medal; RVN Campaign Medal
with
60 Device; 2 Overseas Service Bars; Combat Infantryman Badge; Bronze Star
Medal; Air Medal; Army Commendation Medal; Marksman Marksmanship
Qualification Badge with Rifle (M-14) and Machinegun Bars; and Sharpshooter
Marksmanship Qualification Badge with Rifle (M-16) Bar.  The PH is not
included in the list of authorized 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
separation.

10.  The applicant provides a SF 600 that shows he was treated for a knee
and puncture wound to his right leg on 10 May 1967.  The remarks indicate
he had a metal or wood rod jabbed into his knee and that a puncture wound
was noted.  The form gives no information on the circumstances surrounding
the wound or whether or not it was received as a result of enemy action.
He also provides a DD Form 1380, dated 7 July 1969, that shows he was
diagnosed with a puncture wound to the right leg from a Punji Stick and
that he was evacuated to the Orthopedic clinic for a consult.  This form is
also void of any information regarding the circumstances under which the
wound was received.

11.  During the processing of this case, a member of the Board staff
reviewed the Department of the Army Vietnam Casualty Roster.  There is no
entry on the applicant on this battle casualty list.

12.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's
awards policy.  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 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
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.  A silver service star is used in lieu of five
bronze service stars to denote participation in five campaigns.

14.  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 TET Counteroffensive 1968, Vietnam
Counteroffensive Phase IV, Vietnam Counteroffensive Phase V, Vietnam
Counteroffensive Phase VI, TET Counteroffensive 1969, and Vietnam Summer-
Fall 1969 campaigns.

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 claim of entitlement to the PH based on being wounded
by a punji stick while serving in the RVN was carefully considered.
However, by regulation, in order to support award of the PH there must be
evidence confirming 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.

2.  The applicant provides a medical treatment record that shows he was
treated for a Punji Stick injury to his knee and leg.  Although this
treatment record confirms his injury, it does not indicate that he received
this injury as a result of enemy action.  Further, there are no medical
treatment records on file that indicate he was ever treated for a combat
related wound or injury while serving in the RVN.

3.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was
never wounded in action.  Item 41 does not include the PH in the list of
authorized awards entered and the applicant last audited the DA Form 20 on
13 April 1970, well 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, were correct at that time.
Further, there are no orders or other documents on file in his MPRJ showing
that he was ever recommended for, or awarded the PH by proper authority
during his active duty tenure.  The MPRJ is also void of any documents
showing he was treated for a combat related wound while serving on active
duty.

4.  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.  Finally, his name is not included on the
Vietnam Casualty Roster, the official DA list of RVN battle casualties.
Therefore, the regulatory burden of proof necessary to support award of the
PH has not been satisfied in this case.

5.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH now under consideration on 7 August
1970, the date of his separation.  Therefore, the time for him to file a
request for correction of any error or injustice expired on 6 August 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.

6.  The evidence does show that based on his service and campaign
participation in the RVN, he is entitled to the RVN Gallantry Cross with
Palm Unit Citation and 1 silver service star and 1 bronze service star with
his Vietnam Service Medal.  Therefore, it would be appropriate to add these
awards to his separation document at this time.  The omission of these
awards from his record is an administrative matter that does not require
Board action.  Therefore, the Case Management Support Division (CMSD), St.
Louis, Missouri, will administratively correct the record 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

___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 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 1 silver service star and 1
bronze service star with his Vietnam Service Medal.




                                  _____Carmen Duncan_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060017321                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/06/07                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1970/08/07                              |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unsuitability                           |
|BOARD DECISION          |DENY with Note                          |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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