RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         11 April 2006
      DOCKET NUMBER:  AR20050014177


      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. William D. Powers             |     |Chairperson          |
|     |Ms. Carol A. Kornhoff             |     |Member               |
|     |Mr. Rodney E. Barber              |     |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 a second Purple Heart (PH).


2.  The applicant states, in effect, that he received a combat related
injury during a combat operation in the Republic of Vietnam (RVN) on 17
March 1969, which he believes entitles him to a second award of the PH.  He
claims this injury received while under enemy fire resulted in his being
permanently disabled.

3.  The applicant provides two supporting third-party statements in support
of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 26 November 1979.  The application submitted in this case
is dated 23 August 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 that he was inducted into the Army and
entered active duty on 4 March 1968.  He was trained in, awarded and served
in military occupational specialty (MOS) 11E (Armor Crewman), and he
attained the rank of sergeant (SGT) on 4 April 1969.

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows that
he served in the RVN from 26 November 1968 through 25 November 1969.  Item
38 (Record of Assignments) shows that during his RVN tour, he was assigned
to the following units for the periods indicated:  B Battery, 5th
Battalion,
16th Artillery, from 8 December 1968 through 7 February 1969; Headquarters
and Headquarters Company (HHC), 1st Brigade, 4th Infantry Division, from
8 February 1969 through 3 April 1969; and HHC, 1st Brigade, 4th Infantry
Division from 4 April 1969 through 24 November 1969.  In his first two RVN
units he performed duties in MOS 13A as a Cannoneer and in his final
assignment, he performed duties in MOS 11E as an Armor Crewman.
5.  Item 40 (Wounds) of his DA Form 20 contains one entry that confirms he
received a fragmentation wound to the back on 12 August 1969.  Item 41
(Awards and Decorations) shows that he earned the following awards during
his active duty tenure:  National Defense Service Medal (NDSM); Vietnam
Service Medal (VSM); Combat Infantryman Badge (CIB); RVN Campaign Medal;
PH;
Air Medal (AM); and Marksman Qualification Badge with Rifle Bar.

6.  The applicant's MPRJ contains no medical treatment documents that
indicate he was ever treated for a combat related wound or injury that he
incurred on
17 March 1969.  Further, the MPRJ is void of any documents, or orders that
indicate he was recommended for, or awarded the PH for a wound or injury he
received as a result of enemy action on 17 March 1969.

7.  On 26 November 1969, the applicant was honorably separated after
completing 1 year, 8 months, and 23 days of active military service.  The
DD Form 214 he was issued at the time confirms he earned the following
awards:  NDSM; VSM; CIB; RVNCM; PH; AM; Marksman Qualification Badge with
Rifle (M-14 & M-16) Bar; Sharpshooter Qualification Badge with Machinegun
Bar; and 2 Overseas Bars.

8.  The applicant provides a third-party witness statement from his unit
commander in the RVN.  This individual confirms the applicant was injured
when he fell from a hovering helicopter during a combat extraction
operation.  He stated that he fully supported the applicant's request for
review of disability compensation; however, he makes no mention of the
applicant's injuries being the direct result of, or being caused by enemy
action.  Further, he fails to comment on the applicant entitlement to the
PH for these injuries.  He also provides a second third-party witness
statement from a fellow Soldier who served with him in the RVN.  This
individual confirms the applicant was injured when he fell from a ladder on
the helicopter during a combat operation.

9.  During the processing of this case, a member of the Board staff
reviewed the Department of the Army (DA) Vietnam Casualty Roster.  This
search revealed one entry pertaining to the applicant, which confirmed he
was wounded in action on 12 August 1969.  There was no entry on the
applicant indicating that he was wounded in action on 17 March 1969.

10.  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.

11.  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, and it shows that during
his tenure of assignment, the applicant was credited with participating in
the Vietnam Counteroffensive Phase VI, TET 69 Counteroffensive, Vietnam
Summer-Fall 1969, and Vietnam Winter-Spring 1970 campaigns.

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 (16th Artillery) received the
RVN Gallantry Cross with Palm Unit Citation and RVN Civil Actions Honor
Medal First Class Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of entitlement to a second award of the PH for
being wounded in action on 17 March 1969, and the supporting evidence he
submitted were 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 result of enemy action,
that the wound required treatment by military medical personnel, and a
record of this treatment must have been made a matter of official record.

2.  The applicant's record is void of any indication that he was treated
for a combat related wound incurred on 17 March 1969, or that he was ever
recommended for, or awarded the PH for a wound sustained on that date.

3.  The supporting statement provided by the applicant's unit commander in
the RVN, while confirming the applicant was injured during an operation on
17 March 1969, and supporting disability compensation for this injury,
makes no comment regarding the applicant's entitlement to the PH for this
injury.  Further, had he believed the applicant's injury support award of
the PH at the time, he was in a position to recommend it at the time.

4.  Item 40 of the applicant's DA Form 20 contains an entry confirming he
was wounded in action on 12 August 1969; however, it contains no entry
regarding his being wounded in action on 17 March 1969.  Item 41 confirms
he was awarded the PH for the wound he received on 12 August 1969, but it
does not include a second award of the PH.  There are no medical treatment
documents on file in his MPRJ that show he was treated for a combat related
wound or injury that he sustained on 17 March 1969.  Further, there are no
documents, or orders, that indicate he was recommended for, or awarded the
PH by proper authority for a combat related wound he received on that date.


5.  The veracity of the applicant's claim of entitlement to a second award
of the PH, and the information contained in the supporting statements is
not in question.  However, absent any evidence of record to corroborate the
fact that the injuries received by the applicant on 17 March 1969 were
received as a result of enemy action, or that he was recommended for or
awarded the PH by proper authority, the regulatory burden of proof
necessary to support award of the PH for this incident has not been
satisfied.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration related to award of a PH for injuries
sustained on 17 March 1969 on 26 November 1969.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
25 November 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.

7.  The evidence of record does show that based on his service and campaign
participation in the RVN, the applicant is entitled to the RVN Gallantry
Cross
 with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit
Citation, and 4 bronze service stars with his VSM.  The omission of these
awards
from his separation document is an administrative matter that does not
require Board action to correct.  Therefore, the correction of the
applicant's records will be accomplished by the Case Management Support
Division (CMSD), St. Louis, Missouri, as 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

___WDP    ___CAK _  ___REB_  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 his entitlement to the Republic of Vietnam Gallantry
Cross with Palm Unit Citation, Republic of Vietnam Civil Actions Honor
Medal 1st Class Unit Citation, and 4 bronze service stars with his Vietnam
Service Medal; and by providing him a correction to his separation document
that includes these awards.




                                  _____William D. Powers___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050014177                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/04/11                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1969/11/26                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Overseas Returnee                       |
|BOARD DECISION          |DENY with Adm Note                      |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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