RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 July 2007
      DOCKET NUMBER:  AR20070002331


      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, that the Purple Heart (PH) be added
to his record.

2.  The applicant states, in effect, he received his PH in the mail after
he was honorably discharged.

3.  The applicant provides a PH Certificate in support of his application.


CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 28 July 1969.  The application submitted in this case is
dated
5 February 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 he enlisted in the Regular Army and
entered active duty on 24 March 1966.  He was trained in and awarded
military occupational specialty (MOS) 13E (Artillery Gunner), and sergeant
is the highest rank he attained while serving on active duty.

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows that
he served in the Republic of Vietnam (RVN) from 4 December 1967 through 24
July 1968.  Item 38 (Record of Assignments) shows that during his RVN tour,
he was assigned to Battery A and Headquarters and Headquarters Battery
(HHB),
2nd Battalion, 319th Artillery, performing duties in MOS 13A and 13E as a
cannoneer and fire direct control.  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 Records Jacket (MPRJ) is void of any order or
other documents that show the applicant was ever awarded the PH by proper
authority while serving on active duty.

6.  The applicant's MPRJ does contain medical treatment records showing he
was treated for a thumb injury twice in 1969.  There are no medical
treatment records that show he was ever treated for a combat-related wound
or injury while serving on active duty and the record of his final
separation physical examination (SF 88), dated 27 July 1969, gives no
indication that he had been wounded or injured in action.

7.  On 28 July 1969, the applicant was honorably released from active duty
after completing a total of 2 years, 7 months, and 5 days of creditable
active military service and accruing 27 days of time lost due to being
absent without leave (AWOL).  The separation document (DD form 214) he was
issued upon his separation shows that during his active duty tenure, he
earned the National Defense Service Medal, Vietnam Service Medal, RVN
Campaign Medal, Army Commendation Medal, and Bronze Star Medal.  The PH is
not included in the list of awards contained on the DD Form 214 and the
applicant authenticated this document with his signature on the date of his
separation.

8.  The applicant provides a PH Certificate, dated 13 July 1969, which
indicates he was awarded the PH for wounds received in action in the RVN on
15 May 1969.  He provides no PH orders with this certificate.

9.  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.

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 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.

11.  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.

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, 319th
Artillery) received the 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 Vietnam Counteroffensive Phase III, TET Counteroffensive,
Vietnam Counteroffensive Phase IV, and the Vietnam Counteroffensive Phase V
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 confirms the applicant was treated for a thumb
injury while serving in the RVN.  However, there is no indication that this
injury was received 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.

3.  The applicant's record is 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.  Absent any orders awarding the PH or corroborating medical treatment
records, the PH certificate provided by the applicant alone does not
satisfy the regulatory burden of proof necessary to support award of the
PH.

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 28 July
1969, the date of his separation.  Therefore, the time for him to file a
request for correction of any error or injustice expired on 27 July 1972.
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, 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 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                 |AR20070002331                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/07/31                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1969/07/28                              |
|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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