RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 January 2008
      DOCKET NUMBER:  AR20070012721


      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).

2.  The applicant states, in effect, that he received a shrapnel wound to
his back during a firefight in the Republic of Vietnam (RVN) on 13
September 1967, he was a rifleman with the 4th Infantry Division operating
in the Central Highlands of the RVN.  He claims that until recently, he was
unable to contact anyone who knew of or witnessed his injury.

3.  The applicant provides a Self-Authored Statement and 2 Third-Party
Witness Statements 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 was inducted into the Army and
entered active duty on 20 February 1967.  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 he
served in the RVN from 21 July 1967 through 30 September 1967.  Item 38
(Record of Assignments) shows that during his RVN service, he was assigned
to the 1st Battalion, 8th Infantry Regiment, 4th Infantry Division,
performing duties in MOS 11B as a rifleman.  Item 38 also shows he entered
a patient status at the 249th General Hospital, Camp Zama, Japan, on 1
October 1967, and was ultimately medically evacuated to the United States.


4.  Item 40 (Wounds) of the applicant's DA Form 20 contains an entry
indicating he received a chest wound on 25 September 1967.  The PH is not
included in the list of awards contained in Item 41 (Awards and
Decorations).

5.  The applicant's Military Personnel Records Jacket (MPRJ) contains a
Line of Duty Investigation (DD Form 261) and other medical treatment
records that confirm the applicant received and was treated for an
accidental gunshot wound to the left shoulder, which he received on 24
September 1967.  It 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 and 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.

6.  On 5 May 1969, the applicant was honorably separated and placed on the
Temporary Disability Retired List (TDRL) after completing 2 years, 2 months
and 26 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; Combat Infantryman Badge; and Marksman
Marksmanship Qualification Badge with Rifle (M-14) 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 separation.

7.  The applicant provides 2 third-party statements from individuals who
claim to have served with him in the RVN.  These individuals indicate that
the applicant received a shrapnel wound on 13 September 1967.  One of these
members indicates in his statement that he remembers them talking about a
PH not being awarded because the applicant did not leave the field.

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.  Table B-1 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 III campaign.

11.  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
shrapnel wound he received in the RVN on 13 September 1967, 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 the witness statements provided by the applicant indicate he
received a shrapnel wound on 13 September 1967, and that he was medically
evacuated from the RVN based on an accidental gunshot wound he received on
24 September 1967, his military record is void of any medical treatment
records that show he was ever treated for a combat related wound that he
received as a result of enemy action.   His record also contains no orders
or other documents that indicate he was ever recommended for or awarded the
PH by proper authority while serving on active duty, and the PH is not
included in the list of awards contained in Item 41 of his DA Form 20 or 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.

3.   Finally, the applicant's name is not included on the Vietnam Casualty
Roster, the official DA list of RVN battle casualties.  Thus, absent any
evidence of record to corroborate the information contained in the witness
statements provided, the regulatory burden of proof necessary to support
award of the PH has not been satisfied, and it would not be appropriate or
serve the interest of all those who served in the RVN and faced similar
circumstances to grant the requested relief 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 1 bronze service star 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 2 of the BOARD DETERMINATION/RECOMMENDATION
section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___DKH _  __JRH __  __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 1 bronze service star with his Vietnam
Service Medal; and by providing him a correction to his DD Form 214 that
included these awards.




                                  _____David K. Hassenritter_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070012721                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2008/01/25                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1969/05/05                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |TDRL                                    |
|BOARD DECISION          |DENY with Note                          |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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