RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         23 SEPTEMBER 2004
      DOCKET NUMBER:  AR2004103748


      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. Raymond Wagner                |     |Chairperson          |
|     |Mr. Roger Able                    |     |Member               |
|     |Ms. Eloise Prendergast            |     |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 award of the Purple Heart.

2.  The applicant states that he believes that he is entitled to an award
of the Purple Heart based on his hearing loss sustained while in combat in
Vietnam.  He notes that he is receiving disability compensation from the
Department of Veterans Affairs for this condition.

3.  The applicant submits no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 6 January 1986.  The application submitted in this case
is dated
3 February 2004.

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 an
initial period of active duty between August 1965 and August 1968.  During
that period of service he performed duties as a radio operator and served
one tour of duty in Vietnam.  He was released from active duty on 23 August
1968.  His separation document does not reflect entitlement to the Purple
Heart.

4.  In 1970 the applicant reenlisted and was trained in the medical field.
He served a second tour of duty in Vietnam between April 1971 and January
1972.

5.  According to documents in his military personnel file, the applicant
was issued a permanent profile as a result of hearing loss in December
1973.  The basis for the hearing loss was not identified and there were no
service medical records available to the Board.

6.  On 6 January 1986 the applicant was honorably discharged by reason of
physical disability and his name was placed on the TDRL (Temporary
Disability Retired List).  The medical conditions, which served as the
basis for his discharge, included his hearing loss and issues related to
depression and posttraumatic stress disorder.  Documents associated with
his disability processing indicate that the applicant reported that his
hearing loss was secondary to a Claymore mine explosion in Vietnam.

7.  The applicant's records contain no evidence that he was ever awarded
the Purple Heart and his name is not among a list of individuals reported
as combat casualties during the Vietnam War.

8.  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.

9.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards)
provided, in pertinent part, for award of the Purple Heart.  The regulation
stated that authority to award the Purple Heart was delegated to hospital
commanders.  Further, it directed that all personnel treated and released
within 24 hours would be awarded the Purple Heart by the organization to
which the individual was assigned.  Personnel requiring hospitalization in
excess of 24 hours or evacuation from Vietnam would be awarded the Purple
Heart directly by the hospital commander rendering treatment.

DISCUSSION AND CONCLUSIONS:

1.  Unfortunately, there is no medical evidence which confirms that the
applicant sustained his hearing loss as a result of hostile action while in
Vietnam.  In the absence of such evidence, there is no basis for an award
of the Purple Heart.

2.  The fact that the applicant may have sustained an injury while in a
combat environment or that he may be drawing compensation for such an
injury, is not sufficient for an award of the Purple Heart.  The injury
must have resulted from hostile action, required treatment by a medical
officer, and been made a matter of official records.

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

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 January 1986; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
5 January 1989.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RW__  ___RA __  ___EP __  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.




                                  ____ Raymond Wagner______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004103748                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040923                                |
|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.                      |                                        |


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