RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            08 JULY 2004
      DOCKET NUMBER:   AR2004101104


      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:

|     |Ms. Kathleen Newman               |     |Chairperson          |
|     |Ms. Gail Wire                     |     |Member               |
|     |Mr. William Powers                |     |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 he was wounded on 12 November
1965 while serving in Vietnam.  He states that although he was wounded he
was able to continue with his mission and did not seek any professional
medical care other than "buddy first-aid."  He states that is why the wound
was never entered in his service medical records.

3.  In a self-authored statement, the applicant states that on 12 November
1965 his unit was on a mission to provide security for an airstrip.  He
notes that between 2330 and 2345 he was walking towards his tent when "we
suddenly received a barrage of 60mm enemy mortar and small arms fire."  He
states that he heard Soldiers screaming "I'm hit" and as he was running for
cover he collided with a tree in front of or near his tent.  He states that
at that point a mortar round landed in his tent and exploded.  He states
that some of his "body was out in the open and [he] felt some pain and a
small amount of blood."  However, he states that he thought he had injured
himself against the tree.  He states that due to the confusion of the
battle and exhaustion after, he did not report any of his injuries to
medical personnel or his commander.

4.  The applicant states he never gave much thought to the incident.
However, in October 2002 an X-ray disclosed a "5mm piece of shrapnel"
embedded in his upper left arm and shoulder blade.  Due to the recent
discovery of this "war wound" he is requesting award of the Purple Heart.

5.  The applicant provides a copy of a 2002 medical report and a statement
from his former unit commander.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 31 July 1973.  The application submitted in this case is
dated
14 November 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 served more
than 24 years of active Federal service prior to retiring for length of
service on 31 July 1973.

4.  Between October 1965 and October 1966 he served as a field artillery
section chief in Vietnam.

5.  Item 40 (wounds) on his Department of the Army Form 20 (Enlisted
Qualification Report) is blank.  The form was initiated in 1969 and the
applicant last authenticated the accuracy of the information contained on
the form in 1972.

6.  A physical examination, completed in February 1968 as part of the
applicant's reenlistment action, did not mention any wounds incurred as a
result of hostile action and although it did note a "scar left mid back"
there was no indication of any scars to his left arm or shoulder.  The
applicant did, however, report that he had been treated for malaria in
November 1965 while in Vietnam, evacuated to Hawaii in January 1966, and
then returned to his unit in Vietnam.  It also noted that he had been
treated for a tropical fungus contracted in Vietnam, which had been treated
and improved.

7.  There were no other service medical records, associated with the
applicant's service following his tour of duty in Vietnam and his name is
not among a list of individuals reported as combat casualties during the
Vietnam War.

8.  The Radiology Diagnostic Report, from the Department of Veterans
Affairs Medical Center in Augusta, Georgia, is dated September 2002 and
refers to an X-ray which was done on the applicant's left shoulder on 21
August 2002.  The report noted that the applicant was a 71 year old with
chronic left upper scapula and neck pain that radiates to the back of his
left ear.  The X-ray showed a 5mm size piece of shrapnel in a "focal
proliferation of the periostium metadiaphysis of the humerus" and a "singe
birdshot projects over the scapula."  The source of the shrapnel/birdshot
was not reported.

9.  The statement submitted by the applicant's former commander is dated
31 October 2002.  He noted that the applicant had "applied for the Purple
Heart Medal for wounds received in action in Vietnam."  The former
commander reported that on 12 November 1965 the unit was attacked with
enemy rockets and small arms fire, and that to the best of his recollection
the applicant was "injured and his tent mate was killed in action during
the attack."    He states that he believed that the applicant was wounded
by enemy fire during this firefight and should be awarded the Purple Heart.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant himself states that the wound was not serious enough for
him to seek medical treatment from a professional.  One of the primary
requirements for award of the Purple Heart is that the wound must have
required treatment by a medical officer, and the medical treatment must
have been made a matter of official record.  Unfortunately, that
requirement was not met and the medical document, rendered nearly 40 years
after the fact is not sufficient to confirm that the applicant was in fact
wounded as a result of hostile action and as such, there is no basis for an
award of the Purple Heart.

2.  The statement provided by the applicant's former commander, in the
absence of more compelling medical evidence, is also not sufficient as a
basis to award the applicant the Purple Heart.

3.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 July 1973; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
30 July 1976.  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

__KN ___  ___GW__  ___WP__  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.




            ___Kathleen Newman_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004101104                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040708                                |
|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.                      |                                        |