RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         30 March 2006
      DOCKET NUMBER:  AR20050011204


      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 PH.

2.  The applicant states, in effect, that he was wounded in the Republic of
Vietnam (RVN) by shrapnel when an enemy mine exploded in front of the
vehicle he was in.  He claims he was treated by the field medical corpsman
(MEDIC), who removed as much of the shrapnel that he could, and he was sent
back to duty.  He claims the MEDIC never filed the report for the PH as he
had told him he would.

3.  The applicant provides a Department of Veterans Affairs (VA) Disability
Rating Letter, dated 13 July 2005; and an extract of the Vietnam Wall
containing the name of an individual killed in action.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 25 September 1968, the date of his release from active
duty.  The application submitted in this case is dated 18 July 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 of the
United States and entered active duty on 26 September 1966.  He was trained
in, awarded, and served in military occupational specialty (MOS) 62E
(Construction Machine Operator), and the highest rank he attained while
serving on active duty was specialist five (SP5).

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows he
served in the RVN from 2 March 1967 through 19 February 1968.  During his
RVN tour, he was assigned to Company B, 19th Engineer Battalion, performing
duties in MOS 62E as a loader operator.  Item 40 (Wounds) is blank and Item
41 (Awards and Decorations) does not include the PH in the list of
authorized awards.  The applicant last audited this record on 8 April 1968.

5.  The applicant's Military Personnel Records Jacket (MPRJ) does not
contain orders, or other documents that indicate the applicant was ever
wounded in action, treated for a combat related wound by military medical
personnel, or awarded the PH by proper authority.

6.  On 25 September 1968, the applicant was honorably released from active
duty after completing a total of 2 years of active military service.  The
DD Form 214 he was issued at the time shows he earned the following awards
during his tenure on active duty:  National Defense Service Medal; Vietnam
Service Medal with 2 bronze service stars; Army Commendation Medal; RVN
Campaign Medal; and Sharpshooter Qualification Badge with Rifle Bar.  The
applicant authenticated this document with his signature in Item 32
(Signature of Person Being Transferred or Discharged).

7.  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 in this list of RVN battle casualties.

8.  The applicant provides a VA Rating Decision, dated 13 July 2005.  This
document shows that the VA granted service connection for residual,
shrapnel wound, left knee, with a disability rating of 0 percent.  This
document provides no indication that there were any military medical
treatment records confirming this wound was received as a result of enemy
action.  He also provides an extract of a name on the Vietnam Wall, which
he claims was a friend who was killed in the mine explosion that resulted
in his wounds.

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, Vietnam Counteroffensive Phase III, and
TET Counteroffensive campaigns.

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 claim of entitlement to the PH and the supporting
documents he provided were carefully considered.  However, by regulation,
in order to support award of 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 a
medical officer, and a record of this treatment must have been made a
matter of official record.

2.  The VA rating decision provided by the applicant does not confirm the
condition for which he received service connection was received as a direct
result of, or caused by enemy action.  Further, there are no military
medical treatment records on file, or any provided by the applicant, that
confirms he was ever treated for a combat related wound or injury.

3.  The applicant’s official military personnel record contains no
indication that he was ever wounded in action, or that he was treated for a
combat related wound.  His DA Form 20 is void of an entry in Item 40
showing he was wounded in action, and does not include the PH in the list
of authorized awards in Item 41.  The applicant last audited this record on
8 April 1968, subsequent to completion of his tour in the RVN.  This audit,
in effect, was his verification that the information contained on the DA
Form 20, to include Item 40 and Item 41, was correct on that date.

4.  Further, the PH is not included in the list of awards contained on the
applicant's DD Form 214, which he authenticated with his signature on the
date of his separation.  His signature on this document, in effect, 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, the applicant’s name is not included on the
Vietnam Casualty Roster, the official DA list of RVN battle casualties.


5.  The veracity of the applicant's claim of entitlement to the PH is not
in question. However, absent any evidence (eye-witness statements, medical
treatment records etc) confirming he wounded or injured in action, or
treated for a combat related wound or injury by military medical personnel,
the regulatory burden of proof necessary to support award of the PH has not
been satisfied in this case.

6.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH now under consideration on 25
September 1968, the date of his separation.  Therefore, the time for him to
file a request for correction of any error or injustice expired on 24
September 1971.  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.

7.  The record confirms the applicant is entitled to the RVN Gallantry
Cross with Palm Unit Citation and 3 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.
As a result, the
Case Management Support Division (CMSD), St. Louis, Missouri will be
requested to make the necessary corrections as outlined 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 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 he is entitled to the Republic of Vietnam Gallantry Cross
with Palm Unit Citation and
3 bronze service stars with his Vietnam Service Medal; and by providing him
a correction to his separation document that includes these changes.




                                  ____John T. Meixell    ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050011204                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/03/30                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1968/09/25                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY with Adm Note                      |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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