RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           8 March 2005
      DOCKET NUMBER:  AR20040002214


      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. Mark D. Manning               |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Paul M. Smith                 |     |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).

2.  The applicant states, in effect, that in May 1966 during Operation
Crazy Horse, he received shell fragment to the right side of his face while
serving in the Republic of Vietnam (RVN).  He states he was treated by a
medical corpsman (MEDIC) and returned to duty.  He claims that five days
later, his platoon was overrun and only six survived.  The MEDIC that
treated him was killed and no one turned in the paperwork for his PH.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 30 September 1992.  The application submitted in this case
is dated 14 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 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 on 30 September 1992, he was released
from active duty (REFRAD), for the purpose of retirement after completing
28 years, 8 months and 3 days of active military service.  At the time of
his retirement, he held the rank of chief warrant officer three (CW3).

4.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows that
he served on active duty in the Army in an enlisted status from 29 January
1963 through 6 September 1968.  It further shows that he served in the RVN
from
19 January 1966 through 14 July 1966.  The list of earned awards contained
in Item 9 (Awards, Decorations and Campaigns) of this record does not
include the PH among the list of earned awards.  The applicant last
reviewed this
DA Form 2-1 on 15 November 1983.

5.  A separation document (DD Form 214) on file in the applicant’s Military
Personnel Records Jacket (MPRJ), which documents his active duty service
between 7 September 1965 and 6 September 1968, shows that as of that date,
he earned the following awards:  Parachutist Badge, National Defense
Service Medal, Army Good Conduct Medal, Vietnam Service Medal, RVN Campaign
Medal and Combat Infantryman Badge.  The PH is not included in this list of
authorized awards.  The applicant authenticated this document with his
signature on the date of his separation, 6 September 1968.

6.  The applicant’s MPRJ contains no orders or documents that indicate he
was ever wounded/injured in action.  It is also void of any documents or
orders showing he was ever recommended for or awarded the PH.  Further, the
available medical records in the MPRJ contain no indication that he was
ever treated for a combat related wound/injury.

7.  The DD Form 214 issued to the applicant upon his REFRAD for retirement
on 30 September 1992 does not include the PH in the list of authorized
awards contained in Item 13 (Decorations, Medals, Badges, Citations and
Campaign Ribbons Awarded or Authorized).  The applicant authenticated this
document with his signature on the date of his separation.

8.  In connection with the processing of this case, a member of the Board
staff reviewed the Department of the Army (DA) Vietnam Casualty List, which
contains the list of reported RVN battle casualties.  The applicant’s name
was not included on this casualty roster.

9.  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.  Records of medical treatment for the wound
must support this treatment or injury received in action, and must have
been made a matter of official record.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he received shell fragment wounds to
his face while serving in the RVN and as a result is entitled to the PH was
carefully considered.  However, by regulation, in order to award the PH it
is necessary to establish that a soldier was wounded as a result of enemy
action, that the wound required treatment by a medical officer, and that
the record of medical treatment was made a matter of official record.

2.  The evidence of record provides no confirmation that the applicant was
ever wounded/injured in action, or that he was ever recommended for or
awarded the PH.  The PH is not included in the list of awards contained on
his DA Form 2-1, which he last reviewed on 15 November 1983.  It is also
not included in the list of awards contained on either his 6 September 1968
or 30 September 1992 separation documents, both of which he authenticated
with his signature.  His authentication of these documents confirms he
verified that the information the DD Forms 214 in question contained, to
include the awards listed, was correct at the time the documents were
prepared and issued.

3.  Finally, the applicant’s name is not included on the Vietnam Casualty
Roster.  The absence of his name from this official DA list of RVN battle
casualties would indicate he was never wounded/injured in action.  As a
result, the regulatory burden of proof necessary to support award of the PH
has not been satisfied in this case.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, 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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 September 1992, the date of his
retirement.  Therefore, the time for him to file a request for correction
of any error or injustice expired on 29 September 1995.  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

___MDM   ___PMS _  __BJE __  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.




            ____Mark D. Manning___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040002214                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/08                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1992/09/30                              |
|DISCHARGE AUTHORITY     |10 USC 1293                             |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  61   |107.0015                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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