RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            06 MAY 2004
      DOCKET NUMBER:   AR2004100329


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


  The following members, a quorum, were present:

|     |Mr. Thomas D. Howard, Jr.         |     |Chairperson          |
|     |Mr. James E. Anderholm            |     |Member               |
|     |Mr. Ronald J. Weaver              |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 award of the Purple Heart.

2.  The applicant states, in effect, that during a firefight with enemy
forces in Vietnam he sustained a blast injury to his right ear, a burn to
the right side of his face, and was knocked unconscious.  He states that
the injury occurred during a firing sequence when he and his NCO
(noncomissioned officer) "got out of sequence."  He states that he was
"bending down, covering [his] ears, the NCO accidentally smashed [him] in
the forehead with the next round to be fired, knocking [his] head up over
the barrel of the tube.  When the round fired it blasted the right side of
[his] head, missing [his] head by a fraction of an inch, blowing [his]
right ear drum out and burned the side of [his] face and knocked [him]
unconscious."  He states this occurred on the morning of 27 June 1968.

3.  The applicant states that he was evacuated the next day, was treated,
and received a medical profile.

4.  He states that at the time of the incident he was "too embarrassed to
admit that our actions had caused the injury to request award of the Purple
Heart."  However, he now notes that "with the new disability directives it
is essential that the award be made to receive compensation for combat
incurred injuries."

5.  In addition to his self-authored statement, the applicant provides the
original medical treatment documents from 28 June 1968.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error which occurred on 31
July 1987.  The application submitted in this case is dated 21 October
2003.

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 limitation 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.  Records available to the Board indicate that the applicant initially
entered military service as an enlisted Soldier in February 1954.  He was
commissioned as a second lieutenant following completion of Officer
Candidate School (OCS) in June 1968.  During the applicant's military
career, which spanned nearly 30 years of active Federal service and more
than 32 years of combined active and inactive service, the applicant served
two tours of duty in Vietnam; one between August 1967 and July 1968 and a
second between June 1971 and April 1972.

4.  The original medical documents, provided by the applicant in support of
his request, indicate that he was treated on 28 June 1968 and issued a
temporary physical profile.  One document notes that the applicant was
"exposed to muzzle blast [right] ear now has loss of hearing [with]
intermittent pain.”  The medical treatment record from the ENT (ears, nose,
throat) clinic at the 24th Evacuation Hospital, also dated 28 June 1968,
notes that the applicant was "near muzzle blast several days ago –
sustained blast injury to [right] ear."  The applicant was a member of
Advisory Team 84 at the time of the injury.

5.  The applicant’s name is not among a list of individuals reported as
combat casualties during Vietnam.

6.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple
Heart is awarded for wounds 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 have required treatment by a
medical officer, and the medical treatment must have been made a matter of
official record. Included as part of the Department of Defense
Appropriations Act for fiscal year 1994 was an amendment to the rules
governing award of the Purple Heart.  While the original rules established
that the Purple Heart would be awarded to individual's killed or wounded as
a result of hostile action the amendment enabled the Secretaries of each
department to award the Purple Heart to members of the armed forces who
were killed or wounded in action by weapon fire, while directly engaged in
armed conflict, other than as the result of an act of an enemy of the
United States.  This ruling, in effect, granted the service Secretaries the
authority to award the Purple Heart to individuals directly engaged in
armed conflict who were killed or wounded as a result of "friendly fire."
Strictly prohibited from award of the Purple Heart are wounds or injuries
which were incurred accidentally.

DISCUSSION AND CONCLUSIONS:

1.  Although the medical documents provided by the applicant do confirm
that he was treated for a blast injury to his right ear, the documents do
not confirm the circumstances surrounding the injury.  They make no mention
that the individual was engaged with enemy forces at the time.

2.  While the applicant states that the incident occurred on 27 June 1968
and that his face was burned and that he lost consciousness, none of the
medical statements note those injuries and the medical treatment document
from the 24th Evacuation Hospital indicates that the blast injury occurred
"several days ago" not the day prior as the applicant indicates in his self-
authored statement.

3.  Based on available evidence, and the circumstances related by the
applicant regarding the source of his injury, it appears that the injury
was clearly accidental, even if the applicant may have been directly
engaged with enemy forces as the time, and as such, would not meet the
criteria for award of the Purple Heart.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 July 1987; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
30 July 1990.  However, the applicant did not 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__TDH       __JEA __  __RJW       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.




            __Thomas D. Howard, Jr._
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100329                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |