RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 December 2005 DOCKET NUMBER: AR20050001250 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. Eric S. Moore Analyst The following members, a quorum, were present: Mr. John N. Slone Chairperson Mr. Leonard G. Hassell Member Mr. Michael J. Flynn 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 that he be awarded the Purple Heart. 2. The applicant states he was wounded in the left (L) eye during a mortar attack on 5 January 1971. A mortar round blew something into his left eye while he was running to the flight line to climb into a helicopter. In closing the applicant states that he feels the injury warrants the Purple Heart. 3. The applicant provides a statement, copies of a page labeled (symptoms, diagnosis, treatment, treating organization), two pages of medical record consultations, a page from his rating decision letter from the Veterans Affairs, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and a letter granting him combat related special compensation from the Physical Disability Agency. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged error which occurred on 31 August 1992, the date of his separation from active duty. The application submitted in this case is dated 18 January 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. After having had prior enlisted service, the applicant was commissioned and entered active duty. He retired on 31 August 1992. 4. The applicant's DD Form 214 does not show award of the Purple Heart in item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized). 5. There are no orders in the applicant's records that show he was awarded the Purple Heart. There are no medical records contained in the available records. 6. The applicant's name is not listed on the Vietnam Casualty Roster. 7. The applicant submitted a form showing that someone was treated on 5 January 1971 at the 228th Flight Dispensary for being hit in L eye by a small rock during mortar attack and that the small particle center of cornea L eye was removed. 8. The applicant submitted a medical record consultation sheet dated 11 June 1992, that has the entry for 25 June 1992 as "fragments in the OS (L eye) from Vietnam". 9. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action. Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must required treatment, and the medical treatment must have been made a matter of official record. This regulation also provides that there is no statute of limitations on requests for award of the Purple Heart. DISCUSSION AND CONCLUSIONS: 1. The applicant's claim of entitlement to the Purple Heart was carefully considered. However, there is insufficient evidence to support this contention. By regulation, in order to award the Purple Heart it is necessary to establish that a Soldier was wounded in action, that the wound required treatment by a medical officer, and the treatment record must have been made a matter of official record. 2. The evidence provides no confirmation that the applicant was ever wounded/injured in action. It shows that the applicant received fragments in his left eye; however, it does not show how or when the incident occurred. His record is void of any documentary evidence that shows he was ever treated for a wound sustained in action, or awarded the Purple Heart. 3. Further, the Purple Heart is not included in the list of authorized awards listed on the applicant's DD Form 214, which he authenticated with his signature. His signature on the separation document indicates he verified that the information it contained was correct. Finally, his name is not included on the Vietnam Casualty Roster, the official DA list of Republic of Vietnam battle casualties. 4. Although the veracity of the applicant's claim that he sustained his injuries in the Republic of Vietnam is not in question, lacking any corroborating evidence of record showing that he was treated for a wound/injury that was the direct result of or caused by enemy action, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case. As a result, his request for the Purple Heart must be denied in the interest of all those who served in the Republic of Vietnam and who faced similar circumstances. 5. Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 August 1992. Therefore, the time for the applicant to file a request for correction of an error or injustice expired on 30 August 1995. Although the applicant did not file within the ABCMR's statute of limitations, it is appropriate to waiver failure to timely file in this case based on the fact there is no statute of limitations on requests for award of the Purple Heart. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___mjf __ ___lgh __ ___jns____ 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. ______John N. Slone_________ CHAIRPERSON INDEX CASE ID AR20050001250 SUFFIX RECON DATE BOARDED 20051214 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY MR CHUN ISSUES 1. 107.0015 2. 3. 4. 5. 6.