RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 August 2007
      DOCKET NUMBER:  AR20070002350


      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. Curtis Greenway               |     |Chairperson          |
|     |Mr. Robert W. Soniak              |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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, while serving in the Republic of
Vietnam (RVN) in 1968, he was told he would receive the PH.  He claims he
was injured while giving medical aid to an injured Soldier during a fire
fight.  He states that he was treated for this injury when he returned to
base camp and was in a cast for four weeks; however, he never received the
PH.

3.  The applicant provides the following documents in support of his
application:  Clinical Record-Consultation Sheet (SF 513), dated 3 June
1968; Medical Condition-Physical Profile Record (DA Form 8-274), dated 3
June 1968; and Third-Party Statement (Wife).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 31 March 1976, the date of his final separation from
active duty.  The application submitted in this case is dated 25 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 initially enlisted in the Regular
Army and entered active duty on 18 December 1963.  He was trained in and
awarded military occupational specialty (MOS) 910.07 (Medical Corpsman),
which was later redesignated as MOS 91B.

4.  The applicant's Personnel Qualification Record (PQR), which includes
two
DA Forms 20 and a DA Form 2-1, show that he served in the RVN from
25 January 1968 through 25 January 1969.  These records also show that
during his RVN tour, he was assigned to Headquarters and Headquarters
Battery (HHB), 23rd Artillery Group, performing duties in MOS 91B as a
senior medical aidman.

5.  Item 40 (Wounds) of the applicant's DA Forms 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 his original DA Form 20 on 28
January 1968, and last audited his permanent DA Form 20 on 23 September
1974.  A DA Form 2-1 on file that was prepared on the applicant on 3
October 1975 also does not include the PH in the list of awards contained
in Item 9 (Awards, Decorations & Campaigns).  The applicant last reviewed
the DA Form 2-1 on 9 December 1975.

6.  The applicant's record 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 also contains no medical treatment
records that indicate he was ever treated for a combat related wound or
injury during his active duty tenure.

7.  On 31 March 1976, the applicant was honorably discharged after
completing a total of 12 years, 1 month, and 14 days of active military
service.  The separation document (DD Form 214) he was issued at the time
shows that he held the rank of staff sergeant and that 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) 2nd Award; 2 Overseas Service Bars; Parachutist Badge;
RVN Gallantry Cross with Palm Unit Citation; and the Expert Marksmanship
Qualification Badge with Rifle and Machinegun Bars.  The PH was 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
discharge.

8.  The applicant provides an SF 600 and a DA Form 8-274, which show he was
treated for fractures to his right hand and given a temporary profile.
These documents provide no information on how the applicant incurred this
injury.  He also provides a statement from his wife, in which she outlines
the applicant's service in the RVN and the sacrifices he made.  She also
indicates the applicant is in poor health and deserves to receive the PH he
was promised while serving in the RVN.

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 pertaining to the applicant on this
roster.

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.
11.  The awards regulation further stipulates that 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.  Paragraph 2-13 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.  A silver service star is issued in lieu of
5 bronze service stars to denote participation in
5 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 (HHB, 23rd Artillery Group)
received the Meritorious Unit Commendation (MUC), RVN Gallantry Cross with
Palm Unit Citation and RVN Civil Actions Honor Medal First Class Unit
Citation.  It also confirms that during the period of his RVN assignment,
participation credit was granted for the Vietnam Counteroffensive Phase
III, TET Counteroffensive, Vietnam Counteroffensive Phase IV, Vietnam
Counteroffensive Phase V, and the Vietnam Counteroffensive Phase VI
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 hand
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.  Item 40
(Wounds) of his permanent 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 or in Item 9 of his DA Form 2-1.  He last audited his
permanent DA Form 20 on
23 September 1974 and he last reviewed his DA Form 2-1 on 9 December 1975.
In effect, his audit and review of these records was his verification that
the information contained in them, to include the entries in Item 40 and
Item 41 of the DA Form 20 and in Item 9 of the DA Form 2-1, was correct
when he audited and reviewed these records.
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 final
31 March 1976 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 third party statement and medical
treatment records he submitted is not in question.  However, absent any
orders awarding the PH or corroborating medical treatment records, these
documents alone do 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 31 March
1976, the date of his final separation from active duty.  Therefore, the
time for him to file a request for correction of any error or injustice
expired on 30 March 1979.  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 in addition to the awards already
listed on his final DD Form 214, the applicant is also entitled to the MUC,
RVN Civil Actions Honor Medal First Class Unit Citation, and 1 silver
service star with his VSM based on his RVN service and campaign
participation.  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

___CG __  __RWS__  __KSJ___  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 Meritorious Unit
Commendation, Republic of Vietnam Civil Actions Honor Medal First Class
Unit Citation, and 1 silver service star with his Vietnam Service Medal;
and by providing him a correction to his separation document that includes
these awards.




                                  _____Curtis Greenway______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070002350                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/08/02                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1976/03/31                              |
|DISCHARGE AUTHORITY     |AR 635-200. . . . .                     |
|DISCHARGE REASON        |QMP                                     |
|BOARD DECISION          |DENY with Note                          |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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