RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           10 February 2005
      DOCKET NUMBER:  AR20040001086


      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. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Ms. Laverne V. Berry              |     |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 the Purple Heart (PH) and
waiver of service in order to qualify for a 20-year retirement.

2.  The applicant states, in effect, that he did not receive the items
requested because he was medically evacuated from the Republic of Vietnam
(RVN) in the 1970’s.

3.  The applicant provides no documentary evidence in support of his claim.


CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 30 November 1974.  The application submitted in this case
is dated 28 April 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.  The applicant’s record shows that he initially entered active duty in
the Regular Army (RA) on 13 July 1948 and served until being honorably
released from active duty (REFRAD) on 28 June 1952.  He served in the Army
National Guard (ARNG) from 15 November 1962 through 14 May 1964 and
reentered active duty in the RA on 23 March 1965.

4.  On 7 September 1972, the applicant was honorably REFRAD, by reason of
disability and was placed on the Temporary Disability Retired List (TDRL).
On
1 May 1974, the applicant was removed from the TDRL and returned to active
duty.

5.  Department of the Army (DA) Letter Orders Number D-11-226, dated
15 November 1974, directed the applicant’s REFRAD, by reason of permanent
disability, and that he be placed on the Retired List on 30 November 1974.


6.  The separation document (DD Form 214) issued to the applicant upon his
REFRAD on 30 November 1974 confirms he held the rank and pay grade of
specialist five/E-5 (SP5/E-5) and that he had completed a total of 11
years,
11 months and 4 days of active military service and 14 years, 11 months and

20 days of military service for pay purposes.

7.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and
Campaign Ribbons Awarded or Authorized) of the applicant’s 30 November
1974 DD Form 214 shows he earned the following awards:  National Defense
Service Medal (NDSM) 1st Oak Leaf Cluster, American Campaign Medal, Armed
Forces Expeditionary Medal (AFEM), Vietnam Service Medal (VSM) with
5 bronze service stars, RVN Campaign Medal (RVNCM) with 60 Device, RVN
Gallantry Cross with Palm Unit Citation, 4 Overseas Bars and 5 Service
Stripes.

8.  The applicant’s Enlisted Qualification Record (DA Form 20) shows that
the applicant completed two tours of duty in the RVN. The first from 29
November 1966 through 28 November 1967 and the second from 8 February
through
6 October 1971.  In October 1971, the applicant was reassigned from the RVN

to the Medical Holding Detachment, Fort Meade, Maryland.  Item 40 (Wounds)
is blank and Item 41 (Awards and Decorations) does not include the PH among
the list of authorized awards.

9.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no
order or other documents that indicate the applicant was ever wounded in
action or that he was recommended for or awarded the PH.  Medical documents
on file confirm the applicant’s disability retirement was based on non-
battle related illnesses and were not the result of a combat related wound
or injury.

10.  During the processing of this case, a member of the Board staff
reviewed the Department of the Army (DA) Vietnam Casualty Roster.  This
search failed to reveal the applicant’s name among this official list of
RVN battle casualties.

11.  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.
12.  Title 10 of the United States Code, section 3925 provides the legal
authority for determining whether an enlisted member is eligible for length
of service retirement.  It sates, in pertinent part, that the years of
service are computed by adding all active service in the Armed Forces.
Inactive service in a Reserve Component is creditable for pay purposes
only.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH and his request for a
waiver of service in order to qualify for length of service (20-year)
retirement were carefully considered.  However, there is an insufficient
evidentiary basis to provide the requested relief.

2.  Although the record shows the applicant was reassigned to a medical
holding detachment upon his departure from the RVN in October 1971, there
is no indication that this reassignment was necessitated by a combat
related wound or injury.  The medical records on file related to his
disability retirement confirm he was initially placed on the TDRL and
ultimately permanently retired by reason of physical disability based on
non-battle related illnesses.

3.  The veracity of the applicant’s claim that he was medically evacuated
from the RVN is not in question.  However, to support award of the PH,
there must be evidence confirming the wound or injury for which the award
is being made was the direct result of or caused by enemy action.  Item 40
of his DA Form 20 is blank and his name is not included on the Vietnam
Casualty Roster, which would indicate he was never wounded/injured in
action.  Lacking any evidence of record to corroborate his claim of
entitlement to the PH, the regulatory burden of proof necessary to support
award of the PH has not been satisfied in this case.

4.  By law, in order to qualify for a length of service (20-Year)
retirement, a member must have completed 20 years of active military
service.  There are no provisions of law that provide for a waiver of this
requirement.

5.  The evidence of record confirms the applicant was REFRAD for the
purpose of disability retirement and placed on the Retired List on 30
November 1974.  The DD Form 214 he was issued at the time confirms he
completed a total of
11 years, 11 months and 4 days of active military service and a total of 14
years, 11 months and 20 days of military service for pay purposes at the
time.  As a result, there is no error or injustice related to the service
he was credited with upon retirement and there are no provisions of law or
regulation that would allow crediting him with military service he did not
actually complete.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 November 1974.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 29 November 1977.  However, 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JRS _  __FE  ___  ___LVB _  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.




            __   _Fred Eichorn     _____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040001086                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/02/10                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1974/11/30                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  61   |107.0015                                |
|2.  1021                |100.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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