RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         23 FEBRUARY 2005
      DOCKET NUMBER:  AR20040002104


      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. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Hubert Fry                    |     |Chairperson          |
|     |Ms. Marla Troup                   |     |Member               |
|     |Mr. Peter Fisher                  |     |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 was awarded the Purple Heart at the St.
Albans Naval Hospital in 1968.  He lost the medal and would like to have
the orders so that he can be issued another medal.

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or
Discharge) and a photograph showing award of the Purple Heart.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 28 February 1969.  The application submitted in this case
is dated 15 May 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 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.  The applicant enlisted in the Army for three years on 17 October 1967,
completed training as an artillery surveyor, and in May 1968 was assigned
to Battery F, 26th Artillery, in Vietnam.  The applicant’s DA Form 20
(Enlisted Qualification Record) shows that on 9 June 1968 he was a patient
in the        249th General Hospital, and on 17 June 1968 a patient in the
St. Albans Naval Hospital in Long Island, New York.

4.  On 22 October 1968 a medical board met at St. Albans Naval Hospital to
consider the applicant’s state of health.  The board report indicates that
the applicant was involved in an automobile accident while on active duty
in Vietnam on 4 June 1968 sustaining a fracture of L-1 with dislocation.
The board diagnosed his condition as compression fracture L-1 and
paraparesis.  The board referred him to a Physical Evaluation Board (PEB).

5.  On 27 December 1968 a PEB recommended that he be placed on the TDRL
(temporary disability retired list) with a 70 percent disability rating
because of his disabilities.  On 28 February 1969 the applicant was placed
on the TDRL.  His DD Form 214 does not show award of the Purple Heart.

6.  In a 10 January 1972 letter to the Office of the Adjutant General, a
neurologist at Fitzsimons General Hospital in Denver, Colorado, stated that
the applicant had been recently seen in the Neurology Clinic, and had
suffered a back injury following a mine explosion in Vietnam.  He requested
transfer of his medical records for TDRL purposes and general medical
purposes.

7.  A 21 March 1972 medical report indicates that the applicant was
involved in an auto accident in Vietnam on 4 June 1968 sustaining a
fracture of L1 with dislocation, and developing weakness of both legs and
inability to void immediately.

8.  A 12 May 1972 narrative summary of the applicant’s condition prepared
for a TDRL evaluation indicates that the applicant was involved in an auto
accident while on active duty in Vietnam following a jeep which ran over a
land mine.  He suffered unconsciousness for a few minutes and was
apparently thrown from the jeep suffering a fracture dislocation of L1.
The 12 May 1972 Medical Evaluation Board (MEB) proceedings indicate that
the applicant sustained a compression fracture dislocation, L1 because of
an accidental injury on 4 June 1968 in Vietnam when he was involved in a
jeep accident.

9.  On 12 June 1972 a PEB found the applicant physically unfit and
recommended that he be permanently retired from the Army with a 70 percent
disability rating.

10.  Orders removing the applicant from the TDRL and permanently retiring
him for his physical disability are not available to the Board.

11.  On 18 November 1997 the applicant requested that the Army Reserve
Personnel Center at St. Louis issue him all the awards he is entitled to,
stating that he hopes that he will receive his Purple Heart.  It was lost.

12.  Army Regulation 600-8-22 provides 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 have required treatment, and the medical treatment must have
been made a matter of official record.  Examples of enemy-related injuries
which clearly justify award of the Purple Heart include injury caused by
enemy bullet, shrapnel, or other projectile created by enemy action; injury
caused by enemy placed mine or trap; and injury caused by vehicle or
aircraft accident resulting from enemy fire.  That regulation goes on to
state that it is not intended that such a strict interpretation of the
requirement for the wound or injury to be caused by direct result of
hostile action be taken that it would preclude the award being made t o
deserving personnel.  Commanders must also take into consideration the
circumstances surrounding an injury.

13.  The applicant is not listed as a casualty on the Vietnam casualty
roster maintained by this agency.

14.  The Unit Citation and Campaign Participation Credit Register shows
that Battery F, 26th Artillery was awarded the Republic of Vietnam
Gallantry Cross Unit Citation with Palm for its actions while the applicant
was assigned to that unit.

DISCUSSION AND CONCLUSIONS:

1.  The evidence in this case is far from conclusive.  The circumstances
regarding the applicant’s injuries are unknown.  Two medical reports, the
earliest in October 1968, indicate that the applicant’s injuries resulted
from an auto accident in Vietnam.  Two other reports also make reference to
an auto accident, one however indicating a mine explosion, the other
indicating that he was thrown out of a jeep when it ran over a land mine.
Noted also is the fact that the applicant is not listed on the Vietnam
Casualty Roster.

2.  The applicant was evacuated and treated at the St. Albans Naval
Hospital in June 1968, shortly after he sustained his injuries on 4 June
1968.  The photograph which the applicant submits clearly shows a Navy
officer awarding the Purple Heart to a patient.  The applicant states that
he was that patient.  To believe otherwise would appear to be somewhat
incongruous.

3.  Notwithstanding the inconclusiveness of the evidence presented, it
would seem that the applicant should be given the benefit of the doubt, and
his request be granted.

4.  Consequently, his record should show that the applicant was wounded as
a result of hostile action in Vietnam on 4 June 1968.  Therefore, he is
entitled to award of the Purple Heart.

BOARD VOTE:

___HF __  ___MT   _  ___PF___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief and to excuse failure to timely file.  As a
result, the Board recommends that all Department of the Army records of the
individual concerned be corrected by showing award of the Purple Heart and
the Republic of Vietnam Gallantry Cross Unit Citation with Palm.




                            ______  Hubert Fry_________
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040002104                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040223                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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