RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 July 2007
      DOCKET NUMBER:  AR20070002117


      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:

|     |Ms. Jeanette R. McCants           |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |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 while serving in the Republic of
Vietnam (RVN), he was injured during an artillery attack.  He claims he did
not realize the extent of his injury until years later.  After having
trouble with the injury, he had an X-Ray done, which revealed shrapnel
fragments.

3.  The applicant provides a Third-Party Statement and an Operative Report
from the Memorial Medical Center of Jacksonville, Jacksonville, Florida,
dated
19 May 1993, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 2 November 1971, the date of his release from active duty.
 The application submitted in this case is dated 29 January 2007.

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 enlisted in the Regular Army and
entered active duty on 29 November 1968.  He was trained in and awarded
military occupational specialty (MOS) 67A (Aircraft Maintenance Apprentice)
and the highest rank he attained while serving on active duty was
specialist five (SP5).

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows he
served in the RVN from 4 June 1969 through 3 June 1970.  Item 38 (Record of
Assignments) shows that during his RVN tour, he was assigned to Company A
and Company B, 15th Transportation Battalion, 1st Cavalry Division,
performing duties in MOS 67A as an aircraft maintenance apprentice and
turbine engine repairer.  Item 40 (Wounds) is blank and the PH is not
included in the list of awards contained in Item 41 (Awards and
Decorations).  The applicant last audited this record on 19 July 1971.
5.  The applicant's Military Personnel Records Jacket (MPRJ) is void of
orders or any other documents showing the applicant was ever recommended
for, or awarded the PH by proper authority while serving on active duty.
It also contains no medical treatment records that indicate he was ever
treated for a combat-related wound or injury while serving in the RVN.

6.  On 2 November 1971, the applicant was honorably released from active
duty after completing a total of 2 years, 11 months, and 4 days of active
military service.  The separation document (DD Form 214) he was issued at
the time shows he earned the following awards during his active duty
tenure:  National Defense Service Medal (NDSM); Vietnam Service Medal
(VSM); RVN Campaign Medal; Army Good Conduct Medal (AGCM); Air Medal (AM);
Aircraft Crewmember Badge (ACB); and the Expert Marksmanship Qualification
Badge with Rifle (M-14 & M-16) Bar.  The PH is not included in the list of
awards contained on the DD Form 214 and the applicant authenticated this
separation document with his signature on the date of his separation.

7.  The applicant provides an Operative Record from the Memorial Medical
Center of Jacksonville, which indicates an examination showed the applicant
had a small subcutaneous fragment in his left forearm, which was removed.
He also provides a third-party statement from an individual who indicates
he served with the applicant in the RVN.  He indicates that while he and
the applicant were spending the night at the Rest and Recuperation Center
in Bien Hoa, they were under artillery fire at least three times.  He
claims they assumed they had gotten away clean, and the applicant had a
small cut, which they assumed was caused by a nail cut from tin or some
other mishap.  He states that when he and the applicant returned to their
unit the next day, the applicant's cut had healed.  He claims they assumed
everything was fine until now, years later, when the applicant informed him
about his X-Ray and the doctor removing the shrapnel.

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 pertaining to the applicant on this
casualty list.

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.  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 (15th Transportation Battalion)
received the Valorous Unit Award (VUA), Meritorious Unit Commendation
(MUC), RVN Gallantry Cross with Palm Unit Citation, and the RVN Civil
Actions Honor Medal First Class Unit Citation.  It also confirms that
during his tenure of assignment in the RVN, participation credit was
granted for the TET 69 Counteroffensive, Vietnam Summer-Fall 1969, Vietnam
Winter-Spring 1970, and the Sanctuary Counteroffensive campaigns.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of entitlement to the PH 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 result of enemy action, that the wound was treated by
military medical personnel, and a record of this medical treatment must
have been made a matter of official record.

2.  The evidence of record is void of any indication that the applicant was
ever wounded or injured as a result of enemy action.  His record is void of
orders or any other documents that indicate he was ever recommended for or
awarded the PH by proper authority while serving on active duty.  Further,
Item 40 (Wounds) of his 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, which he last audited on 19 July 1971, more than a
year after he completed his tour in the RVN.  In effect, this audit was his
verification that the information contained on the DA Form 20, to include
the Item 40 and Item 41 entries, was correct at that time.

3.  The applicant's record is also void of any medical treatment records
showing that he was ever treated for a combat related wound or injury while
serving in the RVN, and the PH is not included in the list of awards
contained on his DD Form 214, which he authenticated with his signature on
the date of his separation.  In effect, his signature was his verification
that the information contained on the
DD Form 214, to include the list of awards, was correct at the time the
separation document was prepared and issued.  Finally, the applicant's name
is not included on the Vietnam Casualty Roster, the official DA list of RVN
battle casualties.

4.  The veracity of the applicant's claim of entitlement to the PH and of
the information contained in the 1993 Operative Record and the Third-Party
statement he provided is not in question.  However, absent orders awarding
him the PH or corroborating military medical treatment records that confirm
he was treated for a combat related wound or injury by military medical
personnel while serving in the RVN, 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 2 November
1971, the date of his release from active duty.  Therefore, the time for
him to file a request for correction of any error or injustice expired on 1
November 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 VUA, MUC, RVN
Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal
First Class Unit Citation, and 4 bronze service stars with his VSM.  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 the record as outlined in paragraph 3 of the BOARD
DETERMINATION/RECOMMENDATION section below.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JRM _  __TMR__  __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 Valorous Unit Award,
Meritorious Unit Commendation, Republic of Vietnam Gallantry Cross with
Palm Unit Citation, Republic of Vietnam Civil Actions Honor Medal First
Class Unit Citation, and 4 bronze service stars with his Vietnam Service
Medal; and by providing him a correction to his separation document that
reflects these changes.




                                  _____Jeanette R. McCants___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070002117                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/07/31                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1971/11/02                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY with Note                          |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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