RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 January 2008
      DOCKET NUMBER:  AR20070011866


      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. David K. Hassenritter         |     |Chairperson          |
|     |Mr. James R. Hastie               |     |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, award of the Purple Heart (PH) 1st
Oak Leaf Cluster (2nd Award).

2.  The applicant states, in effect, that although he was ultimately
awarded the PH for being wounded in action in the Republic of Vietnam (RVN)
in the late afternoon of 15 May 1967, sometime prior to noon on that same
date, he received shrapnel wounds to the left leg from a thrown enemy
grenade.  He claims these wound were superficial and extraction from the
field was impossible due to the location of his unit and numerically
superior enemy forces.  He states that later that same day, just before
extraction, he received a gunshot wound under his right eye, through his
tongue, which blew out his left mandible and into his left arm.  He claims
that although these wounding incidents occurred on the same day, they came
at significantly different times and different locations and as a result,
he believes he should be entitled to a second award of the PH.

3.  The applicant provides a self-authored statement and 14 documents,
identified as Exhibits C-1 through C-14 in the statement, 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 24 May 1966.  He was trained in and awarded military
occupational specialty (MOS) 11B (Light Weapons Infantryman), and
specialist four (SP4) is the highest rank he attained while serving on
active duty.

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows the
applicant served in the RVN from 10 December 1966 through 9 December 1967.
Item 38 (Record of Assignments) shows that during his RVN tour, he was
assigned to Company C, 1st Battalion, 327th Infantry Regiment, performing
duties in MOS 11B as a rifleman.

4.  Item 38 of the applicant's DA Form 20 confirms that on 12 June 1967, he
was medically evacuated to the 249th General Hospital, Camp Zama, Japan,
and that he was ultimately medically evacuated to the Department of
Veterans Affairs (VA) Hospital, Lake City, Florida.

5.  The applicant's Military Personnel Records Jacket (MPRJ) contains
medical treatment records that confirm the applicant was struck by small
arms fire in the RVN at approximately 1530 hours on 15 May 1967.  These
treatment records show that a missile passed through the right side of his
face and fractured the left angle of the mandible with lose of bony
substance and a division of the left brachial artery.  The medical
treatment records document no second wounding incident on the same date,
and his record is also void of any casualty reports or other documents that
show he received a shrapnel wound to the leg during a second incident that
occurred earlier in the day on 15 May 1967.

6.  On 24 July 1968, the applicant was honorably released from active duty
for the purpose of disability retirement.  The DD Form 214 he was issued at
that time, as amended in a correction to the separation document (DD Form
215) issued on 15 March 1977, shows he earned the following awards during
his active duty tenure:  National Defense Service Medal; Purple Heart;
Vietnam Service Medal with 2 bronze service stars; RVN Campaign Medal with
Device (1960); RVN Gallantry Cross with Palm Unit Citation; Combat
Infantryman Badge; Parachutist Badge; Expert Marksmanship Qualification
Badge with Rifle Bar; Sharpshooter Marksmanship Qualification Badge with
Automatic Rifle Bar; and Marksman Marksmanship Qualification Badge with
Machinegun Bar.

7.  The applicant provides medical treatment records that all document his
treatment for the wounds he received on 15 May 1967, in the RVN.  None of
these documents give any indication that he was wounded in two separate
actions on the same date.

8.  In connection with the processing of this case, a member of the Board
staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.
This review revealed one entry pertaining to the applicant, which confirms
he was wounded in action in the RVN on 15 May 1967.  There is no second
entry documenting two separate incidents of wounding on that same date.
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 the PH is awarded to any member who has been wounded or killed
in action. A wound is defined as an injury to any part of the body from an
outside force or agent sustained under conditions defined by this
regulation.  In order to support awarding a member the PH, it is necessary
to establish that the wound for which the award is being made was received
as a direct result of, or was caused by enemy action, the wound required
treatment by military medical personnel.  This treatment must be supported
by records of medical treatment for the wound or injury received in action,
and must have been made a matter of official record.  The regulation
stipulates than not more than one award will be made for more than one
wound or injury received at the same instant or from the same missile,
force, explosion, or agent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to a 2nd Award of the PH
for wounds he received in action earlier on the same day that he received
the wounds that ultimately resulted in his medical evacuation from the RVN
and in his being awarded the PH was carefully considered.  However, there
is insufficient evidence to support his claim.

2.  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 it was treated by military medical personnel;
and a record of the medical treatment must have been made a matter of
official record.  A second award of the PH is not authorized for more than
one wound or injury received at the same instant or from the same missile,
force, explosion, or agent.

3.  The evidence of record and independent evidence submitted by the
applicant confirm he was wounded in action in the RVN at approximately 1530
hours on
15 May 1967.  The record and independent evidence provided by the applicant
fail to confirm the applicant was wounded during a second action in the RVN
that occurred earlier in the day on that same date.  Item 40 of his DA Form
20 and the DA Vietnam Casualty Roster contain entries confirming only one
incident of his being wounded in action in the RVN on 15 May 1967.  His
record is also void of any medical treatment records or casualty reports
that verify he was wounded in action twice during two separate incidents in
the RVN on 15 May 1967, or that show his entitlement to a second award of
the PH.

4.  Although a second award of the PH would be authorized for a wound the
applicant received during a separate incident earlier on the same day he
received the wounds that resulted in his medical evacuation, absent any
evidence of record (Medical Treatment Records, Casualty Reports, etc.) or
independent evidence (eyewitness statements, etc.) corroborating the
applicant's claim that he was wounded in action earlier in the day on 15
May 1967, during a separate incident, the regulatory burden of proof
necessary to support a second 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___DKH _  __JRH __  __EEM__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  _____David K. Hassenritter___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070011866                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2008/01/25                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1968/07/24                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability Retirement                   |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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