RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 September 2007
      DOCKET NUMBER:  AR20070006479


      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          |
|     |Ms. Laverne V. Berry              |     |Member               |
|     |Mr. Ronald D. Gant                |     |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 there is no mention of the wound
he received to his foot during a rocket attack while serving in the
Republic of Vietnam (RVN).  He claims that his separation document (DD Form
214) should reflect the PH but does not.

3.  The applicant provides no additional documentary evidence in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that he enlisted in the Regular Army and
entered active duty on 5 January 1967.  He was trained in and awarded
military occupational specialty (MOS) 62E (Construction Machine Operator),
and specialist five (SP5) is the highest rank he attained while serving on
active duty.

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows that
the applicant served in the RVN from 2 May 1968 through 30 April 1969. Item
38 (Record of Assignments) shows that during his RVN tour, he was assigned
to Company B, 4th Engineer Battalion, 4th Infantry Division, performing
duties in MOS 62E as a tractor operator.  Item 40 (Wounds) is blank and the
PH is not included in the list of awards contained in Item 41 (Awards and
Decorations).  Item 48 (Date of Audit) shows the applicant last audited the
DA Form 20 on
9 June 1969.

4.  The applicant's Military Personnel Record Jacket (MPRJ) is void of any
orders or other documents that show he was ever recommended for or awarded
the PH while serving on active duty, and there are no medical treatment
records on file that indicate he was ever treated for a combat-related
wound by military medical personnel while serving in the RVN.

5.  On 9 January 1970, the applicant was honorably released from active
duty after completing 2 years, 11 months and 29 days of creditable active
military service and accruing 7 days of time lost due to being absent
without leave (AWOL).  Item 24 (Decorations, Medals, Badges, Commendations,
Citations and Campaign Ribbons Awarded or Authorized) of the 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 (RVNCM); Army Commendation Medal (ARCOM); and Sharpshooter
Marksmanship Qualification Badge with Rifle Bar.  The PH is not included in
the list of awards contained in Item 24 and the applicant authenticated the
DD Form 214 with his signature in Item 32 (Signature of Person Being
Transferred or Discharged) on the date of his separation.

6.  During the processing of this case, a member of the Board staff
reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The
applicant's name was not included on this casualty list.

7.  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 the wound for
which the award is being made was received as a result of enemy action,
that the wound required treatment by military medical personnel, and a
record of this treatment must have been made a matter of official record.

8.  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
campaign a member is credited with participating in while serving in the
RVN.  Table B-1 contains a list of RVN campaigns and confirms that during
the applicant's period of assignment in the RVN, participation credit was
granted for the Vietnam Counteroffensive Phase IV, Vietnam Counteroffensive
Phase V, Vietnam Counteroffensive Phase VI, and TET 69 Counteroffensive
campaigns.

9.  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 shows that during his tenure of
assignment in the RVN, the applicant’s unit (Company B, 4th Engineer
Battalion, 4th Infantry Division) received the Meritorious Unit
Commendation (MUC), RVN Gallantry Cross with Palm Unit Citation and RVN
Civil Actions Honor Medal First Class Unit Citation.

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 confirming 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 treatment
must have been made a matter of official record.

2.  Item 40 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 applicant last audited the DA Form 20 on 9 June
1969, more than a month after he departed the RVN.  In effect, his audit
was his verification that the information contained on the record, to
include the Item 40 and Item 41 entries, was correct at that time.  His
MPRJ is void of any orders or other documents showing that he was ever
recommended for or awarded the PH by proper authority while serving on
active duty.  His records also contain no medical treatment records
verifying that he was ever treated for a combat-related wound while serving
in the RVN.

3.  Further, the PH is not included in the list of awards contained in Item
24 of the applicant's 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 separation document, to
include Item 24, was correct at the time the DD Form 214 was prepared and
issued.  Finally, his name is not included on the Vietnam Casualty Roster,
the official DA list of RVN battle casualties.  Absent any documentary
evidence confirming that the applicant was wounded in action while serving
in the RVN, the regulatory burden of proof necessary to support award of
the PH has not been satisfied in this case.

4.  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 related to award of the
PH.
5.  The evidence of record does show that based on his service and campaign
participation in the RVN, he is entitled to the MUC, RVN Gallantry Cross
with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit
Citation and
4 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 as outlined in paragraph 2 of the BOARD
DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JEA__  __LVB __  __RDG__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable
error or injustice.  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.  The Board determined that administrative error in the records of the
individual 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 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 includes these changes.




                                  _____James E. Anderholm_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070006479                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/09/18                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1970/01/09                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY with Note                          |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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