RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 December 2007
      DOCKET NUMBER:  AR20070009497


      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. Kathleen A. Newman            |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 he be awarded the Purple Heart
      (PH).

2.  The applicant states, in effect, that he received a severe injury to
his shoulder while firing a Howitzer during a combat mission and did not
receive the PH.  He states that within two days of his injury, an officer
informed him at the hospital that he was being put in for the PH; however,
he was medically evacuated to Japan and then on to the United States and
never received the award.

3.  The applicant provides the following documents in support of his
application:  Clinical Record (SF 502); Physical Profile Record (DA Form 8-
274); and Separation Document (DD Form 214).

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 was inducted into the Army and
entered active duty on 1 August 1968.  He was initially trained in and
awarded military occupational specialty (MOS) 13A (Field Artillery) on 22
November 1968, and was later reclassified into MOS 64B (Light Truck Driver)
on 16 August 1969.

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows he
served in the Republic of Vietnam (RVN) from 2 January through 7 March
1969.  Item 38 (Record of Assignments) shows that during his RVN service,
he was assigned to Howitzer Battery, 2nd Squadron, 11th Armored Cavalry
Regiment, performing duties in MOS 13A as a cannoneer.  Item 38 also shows
he entered a patient status at the 7th Field Hospital on 25 February 1969,
and was ultimately medically evacuated to the United States.

4.  Item 40 (Wounds) of the applicant's DA Form 20 is blank.  The PH is not
included in the list of awards contained in Item 41 (Awards and
Decorations), and the applicant last audited the DA Form 20 on 27 January
1970.

5.  The applicant's Military Personnel Records Jacket (MPRJ) is void of any
orders or other documents that indicate 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 showing he was ever treated for
a wound or injury that he received as a direct result of or that was caused
by enemy action.

6.  On 23 July 1970, the applicant was honorably released from active duty
(REFRAD) after completing 1 year, 11 months, and 23 days of active military
service.  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; Expert
Marksmanship Qualification Badge with Rifle (M-14) Bar; and Sharpshooter
Marksmanship Qualification Badge with Rifle (M-16) Bar.  The PH is not
included in the list of awards contained on the DD Form 214 and the
applicant authenticated the separation document with his signature on the
date of his REFRAD.

7.  The applicant provides an SF 502, dated 7 March 1969, which shows he
was injured on 21 February 1969, when he was caught in the turret of a 155
cannon. The medical treatment document gives no indication that the
shoulder injury sustained by the applicant was received as a direct result
of or was caused by enemy action.  He also provides a DA Form 8-274, which
shows he received a
3 profile in his upper extremities based on the dislocation of his anterior
right sternoclavicular joint.  This document is also void of any
information related to the circumstances under which the injury was
sustained.

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 military
medical personnel 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 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.

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 VI and Tet 69
Counteroffensive, 1969 campaigns.

12.  Department of the Army General Order Number 8, dated in 1974,
authorized the award of the Republic of Vietnam Gallantry Cross with Palm
Unit Citation to all personnel assigned to the RVN from 8 February 1962
through 28 March 1973.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to the PH based on a
shoulder injury he received while serving in the RVN 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 direct result of or was caused by enemy
action.

2.  Although it is clear the applicant sustained a shoulder injury while
serving in the RVN, the evidence of record and independent evidence
provided by the applicant does not show this injury was received as a
direct result of or was caused by 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.  The applicant last audited his DA Form 20 on 27
January 1970, nearly a year 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.

3.  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.  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, his name is not
included on the Vietnam Casualty Roster, the official DA list of RVN battle
casualties.  Thus, absent any evidence confirming his injury was received
as a result of enemy action, 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 RVN service and
campaign participation, the applicant is entitled to the RVN Gallantry
Cross
with Palm Unit Citation and 2 bronze service stars with his VSM.  The
omission of these awards from his record 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

___KAN _  __RML __  __EEM__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  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 Republic of Vietnam Gallantry
Cross with Palm Unit Citation and 2 bronze service stars for wear on his
already-awarded Vietnam Service Medal; and by providing him a correction to
his separation document that includes these awards.



                                  _____Kathleen A. Newman___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20070009497                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/12/06                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1070/07/23                              |
|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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