RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 June 2007
      DOCKET NUMBER:  AR20070000354


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Ms. Jeanette B. McPherson         |     |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 should receive the PH for wounds he
received in the Republic of Vietnam (RVN) when an M-1-13 (Armored Personnel
Carrier) ran over an enemy land mine in January 1971.  He states he was
overlooked by unit clerks and was treated at a medical facility in the area
of Quang Tri, RVN.

3.  The applicant provides an extract of a Department of Veterans Affairs
(VA) rating decision in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 18 May 1971, the date of his release from active duty
(REFRAD).  The application submitted in this case is dated 22 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 inducted into the Army and
entered active duty on 4 September 1969.  He was trained in and awarded
military occupational specialty (MOS) 11E (Armor Crewman), and the highest
rank he attained while serving on active duty was sergeant (SGT).

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows he
served in the RVN from 22 June 1970 through 17 May 1971.  Item 38 (Record
of Assignments) shows that during his RVN tour, he was assigned to B Troop,

1st Squadron, 11th Armored Cavalry Regiment from 29 June 1970 through
12 February 1971 and to Headquarters and Headquarters Company,
1st Battalion, 77th Armor Regiment, 1st Brigade, 5th Infantry Division,
performing duties in MOS 11E as an armor crewman.  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 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.  It is also void of any medical treatments
records that show he was ever treated for a combat related wound by
military medical personnel while serving in the RVN.

6.  On 18 May 1971, the applicant was honorably REFRAD after completing
1 year, 8 months, and 15 days of active military service.  The DD Form 214
he was issued at the time shows he earned the National Defense Service
Medal, Army Commendation Medal, Vietnam Service Medal, RVN Campaign Medal,
Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and 1
Overseas Service Bar.  The applicant authenticated this document with his
signature in Item 32 (Signature of Person Being Transferred or Discharged)
on the date of his REFRAD.

7.  The applicant provides an extract of a VA rating decision, dated 2
February 2006.  This document shows he is service connected for a Post
Traumatic Stress Disorder (PTSD), Residuals of a Shell Fragment Wound-Left
Thigh, Residuals of a Shell Fragment Wound-Left Elbow, Residuals of a Shell
Fragment Wound-Right Hand, and Residuals of a Shell Fragment Wound-Right
Leg.  This document gives no indication of whether military medical
treatment records were used in arriving at their decisions, and is void of
an explanation regarding how the specific conditions were incurred

8.  During the processing of this case, a member of the Board staff
reviewed the Department of the Army (DA) Vietnam Casualty Roster.  This
search failed to reveal an entry on this document pertaining to the
applicant.

9.  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 award a PH there must be evidence that a member was
wounded or injured as a result of enemy action.  The wound or injury for
which the PH is being awarded must have required treatment by a medical
officer and this treatment must be supported by medical treatment records
that were made a matter of official record.

10.  Paragraph 2-13 of the awards regulation contains guidance on the
Vietnam Service Medal.  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.
11.  Table B-1 of the awards regulation contains a list of RVN campaigns.
It shows that during the applicant’s tenure of assignment, campaign credit
was awarded for the Vietnam Counteroffensive Phase VII 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 units (11th Armored Cavalry
Regiment) received the Republic of Vietnam Gallantry Cross with Palm Unit
Citation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of entitlement to the PH based on wounds he
received in the RVN was carefully considered.  However, by regulation, in
order to support award of the PH, there must be evidence confirming the
wound for which the award is being made was received as a result of or was
caused by enemy action, that the would required treatment by military
medical personnel, and a record of this medical treatment must have been
made a matter of official record.

2.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was
never wounded in action, and the PH is not included in the list of awards
contained in Item 41.  The PH is also not included in the list of awards
contained on the applicant's DD Form 214, which he authenticated with his
signature on the date of his REFRAD.  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.

3.  The applicant's record is also void of any orders or other documents
that show he was ever recommended for, or awarded the PH by proper
authority while serving on active duty.  Further, there are no medical
treatment records on file in his record that show he was ever treated for a
combat related wound or injury, and his name is not included on the Vietnam
Casualty Roster, the official DA list of RVN battle casualties.

4.  Finally, the veracity of the applicant's claim of entitlement to the PH
and of the information contained on the extract of the VA rating decision
document provided by the applicant is not in question.  However, absent any
evidence of record that corroborates the applicant's claim that he was
wounded in action in the RVN and that he was treated for those wounds by
military medical personnel, 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 18 May
1971, the date of his REFRAD.  Therefore, the time for him to file a
request for correction of any error or injustice expired on 17 May 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 based on his RVN service and
campaign participation, the applicant is entitled to the RVN Gallantry
Cross with Palm Unit Citation and to 2 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 by the Board in paragraph 3 of the BOARD
DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JEA __  __JLP ___  __JBM __  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 2 bronze service stars with his
Vietnam Service Medal; and by providing him a correction to his separation
document that includes these changes.




                                  _____James E. Anderholm____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070000354                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/06/26                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1971/05/18                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |OS Rtn                                  |
|BOARD DECISION          |DENY with Note                          |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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