RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 June 2007
      DOCKET NUMBER:  AR20060017380


      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, the list of awards contained on his
separation document (DD Form 214) does not include the PH.

3.  The applicant provides two medical treatment records in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 8 May 1970, the date of his discharge.  The application
submitted in this case was received on 18 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 he was inducted into the Army and entered
active duty on 19 August 1968.  He was trained in, awarded, and served in
military occupational specialty (MOS) 11B (Infantryman) 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 the
applicant served in the Republic of Vietnam (RVN) from 26 May 1969 through
8 May 1970.  Item 38 (Record of Assignments) shows that during his RVN
tour, he was assigned to Company D, 2nd Battalion, 502nd Infantry Regiment,
performing duties in MOS 11B.  Item 40 (Wounds) is blank and the PH is not
included in the list of awards contained in Item 41 (Awards and
Decorations).

5.  The applicant's Military Personnel Records Jacket (MPRJ) is void of any
orders or documents indicating he was ever recommended for, or awarded the
PH by proper authority while serving on active duty.  It also contains no
medical treatment records that show he was treated for a combat related
wound or injury while serving on active duty.
6.  On 8 May 1970, the applicant was discharged under the provisions of
Army Regulation 635-212, by reason of unfitness, and received an
undesirable discharge.  The DD Form 214 he was issued at the time shows he
completed a total of 1 year, 6 months and 25 of creditable active military
service and that he accrued 55 days of time lost due to being absent
without leave (AWOL).  Item 24 (Decorations, Medals, Badges, Commendations,
Citations and Campaign Ribbons Awarded or Authorized) shows he earned the
following awards during his active duty tenure:  National Defense Service
Medal; Vietnam Service Medal; RVN Campaign Medal; Combat Infantryman Badge;
Army Commendation Medal; and 2 Overseas Bars.  The PH is not included in
the list of awards contained in Item 24 and the applicant authenticated the
separation document with his signature in Item 32 (Signature of Person
Being Transferred or Discharged) on the date of his separation.

7.  On 11 August 1971, the Army Discharge Review Board upgraded the
applicant's discharge to a general, under honorable conditions discharge.
The ADRB case summary indicates the applicant was twice wounded in the RVN.
 In his testimony the applicant confirms the stomach wound he received was
the result of an accidental shooting, and he does not clarify the
circumstances surrounding how he received the shrapnel wound to his back.
He gives no indication that either of these wounds was received as a result
of enemy action and admits he was never awarded the PH.

8.  The applicant provides a Chronological Record of Medical Care (SF 600)
that shows he was treated for a wound to his abdomen on 16 October 1967 and
for fragment wounds to his back on 27 April 1970, which is also confirmed
in a DD Form 728 (Doctor's Orders) provided by the applicant.  None of
these forms indicate the wounds for which the applicant was treated 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 Summer-Fall 1969, Vietnam Winter-Spring 1970, and
Sanctuary Counteroffensive campaigns.

12.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit
Register) establishes the eligibility of individual members for campaign
participation credit, assault landing credit, and unit citation badges
awarded during the Vietnam Conflict.  It confirms that during his tenure of
assignment in the RVN, the applicant’s unit (2nd Battalion, 502nd Infantry
Regiment) earned the Valorous Unit Award, RVN Civil Actions Honor Medal
First Class Unit Citation, and the RVN Gallantry Cross with Palm Unit
Citation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to the PH based on being
twice wounded 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 direct result of, or
was caused by enemy action.

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.  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 on 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 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 Valorous Unit Award, RVN
Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal
First Class Unit Citation, and 3 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 Valorous Unit Award,
Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of
Vietnam Civil Actions Honor Medal First Class Unit Citation, and 3 bronze
service stars with his Vietnam Service Medal; and by providing him a
corrected separation document that includes these awards.




                                  _____Linda D. Simmons_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060017380                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/06/05                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1970/05/08                              |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY with Note                          |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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