RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         30 March 2006
      DOCKET NUMBER:  AR20050008666


      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.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Ms. Carol A. Kornhoff             |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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) and
Combat Infantryman Badge (CIB).

2.  The applicant states, in effect, his separation document (DD Form 214)
does not reflect the fact that he was a recoilless rifleman assigned to a
combat unit in the Republic of Vietnam (RVN), and he was treated for a leg
condition while in combat.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 12 June 1969.  The application submitted in this case is
dated
24 May 2005.

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 he was inducted into the Army and entered
active duty on 8 August 1968.  He was trained in, awarded and served in
military occupational specialty (MOS) 11H (Recoiless Rifleman), and the
highest rank he attained while serving on active duty was private first
class (PFC).

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows that
he served in the RVN for just over three months from 6 March through 10
June 1969.  While serving in the RVN, he was assigned to Company C, 5th
Battalion, 46th Infantry Brigade, performing duties in MOS 11H as an
assistant gunner.

5.  Item 40 (Wounds) of the applicant's DA Form 20 is blank, and the list
of awards entered in Item 41 (Awards and Decorations) does not include the
PH and CIB.  His Military Personnel Records Jacket (MPRJ) does not contain
orders, or other documents showing he was ever recommended for, or awarded
either the PH or CIB.  Further, it is void of any medical treatment
documents indicating he was ever treated for a combat related wound or
injury.

6.  On 26 April 1969, the applicant's unit commander notified the applicant
that he was recommending his separation for unsuitability based on the
recommendation of mental health officials.  In this recommendation, the
unit commander confirms that shortly after his arrival in the RVN, during
his orientation, the applicant was evaluated by mental hygene personnel,
who recommended the applicant not be placed on field duty.

7.  On 12 June 1969, the applicant was separated with a general, under
honorable conditions discharge under the provisions of Army Regulation
635-212 for unsuitability.  The separation document (DD Form 214) he was
issued at this time shows he completed a total of 10 months and 5 days of
active military service, and that he earned the following awards during his
active duty tenure:  National Defense Service Medal; Vietnam Campaign
Medal; Vietnam Service Medal; and Expert Qualification Badge with Rifle
Bar.  The PH and CIB are not included in this list of awards, and the
applicant authenticated the document with his signature in Item 32
(Signature of Person Being Transferred or Discharged).

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 did not reveal the applicant’s name.

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, required
treatment by a medical officer.  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.

10.  Paragraph 2-13 of the awards regulation contains guidance on the
Vietnam Service Medal.  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, and it shows that during his tenure of assignment, the applicant
was credited with participating in the Vietnam Counteroffensive Phase II
and Vietnam Counteroffensive Phase III campaigns.

11.  Paragraph 8-6 of the awards regulation contains guidance on award of
the CIB.  It states, in pertinent part, that there are basically three
requirements for award of the CIB.  The Soldier must be an infantryman
satisfactorily performing infantry duties, must be assigned to an infantry
unit during such time as the unit is engaged in active ground combat, and
must actively participate in such ground combat.  Campaign or battle credit
alone is not sufficient for award of the CIB.  In 1963 and 1965 DA messages
to the senior Army commander in the Southeast Asia theater of operations
authorized award of the CIB to otherwise qualified personnel "provided they
are personally present and under fire."  United States Army Vietnam (USARV)
regulations went so far as to require documentation of the type and
intensity of enemy fire encountered by the Soldier. The intended
requirement to be "personally present and under fire" has not changed.

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 (46th Infantry) received the
RVN Gallantry Cross with Palm Unit Citation and credit was granted for the
TET 69 Counteroffensive campaign.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to the PH and CIB was
carefully considered.  However, by regulation, in order to support award of
the PH, it is necessary to establish that the member was wounded in action.
 Further, 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, that it required treatment by a medical officer, and a record
of this treatment must have been made a matter of official record.

2.  The evidence of record contains no indication that the applicant was
wounded in action, or treated for a combat related wound or injury.  Item
40 of his DA Form 20 is blank, which indicates he was never wounded in
action.  His MPRJ contains no orders, or other documents indicating he was
ever recommended for, or awarded the PH by proper authority, or of medical
treatment records showing he was ever treated for a combat related wound or
injury.  Further, the PH is not included in the list of awards contained on
his DA Form 20 or DD Form 214, and his name is not on the Vietnam Casualty
Roster, the official DA list of RVN battle casualties.  Thus, the
regulatory burden of proof necessary to support award of the PH has not
been satisfied in this case.


3  By regulation, in order to qualify for the CIB, a member must not only
hold an infantry MOS and serve with a qualifying infantry unit, there must
also be evidence that he was personally present with the qualifying
infantry unit when it was engaged in active ground combat, and that that he
actively participated in such ground combat.  Holding an infantry MOS,
being assigned to a qualifying unit, and receiving campaign or battle
credit alone are not sufficient to support award of the CIB.  In this case,
the evidence of record shows the applicant held an infantry MOS and was
assigned to a qualifying infantry unit.  However, there is no evidence
showing that he was personally present and actively participated with his
unit while it was engaged in active ground combat.

4.  Further, his unit commander's separation recommendation confirms that
during the applicant's in-processing to the unit, mental hygene officials
recommended he not be assigned to field duty, and his stay in the RVN was
just over three months.  Given these facts, it is logical to presume that
he never participated with the unit in active ground combat.  Therefore,
given his record is void of any documentary evidence showing he was ever
awarded the CIB by proper authority, the regulatory criteria necessary to
support award of the CIB has not been met in this case.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 June 1969, the date of his
separation. Therefore, the time for him to file a request for correction of
any error or injustice expired on 11 June 1972.  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.

6.  The record does show that based on his service and campaign
participation in the RVN, he is entitled to the RVN Gallantry Cross with
Palm Unit Citation, and 1 bronze service star 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 to
correct.  Therefore, the Case Management Support Division (CMSD), St.
Louis, Missouri will make the necessary administrative corrections outlined
by the Board in paragraph 3 of the
BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JTM  _  __CAK__  __RCH__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.  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 there are administrative corrections that should
be made in the records of the individual should be corrected.  Thus, it
requests the CMSD-St. Louis 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 his a correction to his separation document that
includes these changes.




                                  _____John T. Meixell______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050008666                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/03/30                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1969/06/12                              |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unsuitability                           |
|BOARD DECISION          |DENY with Adm Note                      |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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