RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           3 March 2005
      DOCKET NUMBER:  AR20040002524


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Ms. Margaret K. Patterson         |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 the reason his name is not on the
Republic of Vietnam Casualty Roster is that he had not yet been accepted by
his unit.  He arrived at the Replacement Center on 20 August 1968 and was
later sent to the Americal Division base camp at Chu Lai.  After about a
week of orientation he was sent to his unit at Duc Pho.  He left for his
unit with a two-truck convoy.  He was a rear guard on the second truck,
sitting on top of the boxes of supplies.  As they neared a village they
began to hear gunfire.  The first truck started speeding up and the truck
he was on did the same.  The driver was swerving to miss the potholes and
mine explosions.  He was thrown from the truck and received a head injury.


3.  The applicant states that he was told when the medical evacuation
helicopter came to get him the Viet Cong had already stripped him of his
clothes.  As a result of his injury the front part of his brain was
removed.  He lost his ability to smell and taste and he was paralyzed from
the underarms down, but he underwent therapy and learned how to walk and
talk again.  He was sent to Walter Reed Army Hospital for further
evaluation.  The doctor there told him a ceremony to award him the Purple
Heart was scheduled.  A few days later, it was decided he would not receive
a medical discharge and he was reassigned.  He was to leave the day before
the award ceremony.  He was told the Purple Heart would be sent to his next
duty station but he never received it.

4.  The applicant provides his DD Form 214 (Armed Forces of the United
States Report of Transfer or Discharge); a DA Form 8-275-2 (Clinical Record
Cover Sheet); a DA Form 8-275-3 (Clinical Record Cover Sheet); a Standard
Form 600 (Chronological Record of Medical Care); a Veterans Administration
Hospital Radiology Consultation sheet dated 25 April 1984; and computerized
tomography results dated 25 February 1991.

5.  The applicant also provides a letter from a fellow Soldier dated 27
November 1968; four Western Union telegrams dated 12, 15, 19, and 24
September 1968;  a Medical Evaluation Board Narrative Summary; three
casualty messages, dated 11, 15 and 18 September 1968; an undated DA Form
1594 (Daily Staff Journal or Duty Officer's Log); and a Surgeon General
Form 84-R (Clinical Record Cover Sheet).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 9 June 1969.  The application submitted in this case is
dated 1 June 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 was inducted into the Army on 30 August 1967.  He
completed basic combat training and advanced individual training and was
awarded military occupational specialty 11B (Light Weapons Infantryman).

4.  The applicant arrived in Vietnam and was assigned to the 23d Adjutant
General Administrative Company Replacement Detachment on 25 August 1968. He
was assigned to Company A, 4th Battalion, 21st Infantry, 11th Infantry
Brigade on 7 September 1968.

5.  A casualty message dated 11 September 1968 indicated the applicant was
placed on the SI (seriously wounded, injured, or ill) at the 2d Surgical
Hospital on 11 September 1968 due to a vascular malformation of the brain
possibly due to a subarachnoid hemorrhage.  The message indicates he had
been hospitalized on 8 September 1968.

6.  By Western Union telegram dated 12 September 1968, the applicant's
parents were informed that he had been placed on the seriously ill list on
11 September 1968 as the result of vascular malformation of the brain
possibly due to subarachnoid hemorrhage.

7.  The applicant was transferred to the 249th General Hospital in Japan on
        18 September 1968.  While in Japan, he underwent a right frontal
craniotomy with evacuation of an intracerebral bloodclot and amputation of
the right frontal lobe tip.  He was transferred to Walter Reed General
Hospital on 9 October 1968.

8.  The MEB Narrative Summary, dated 26 November 1968, stated that the
[medical] transfer records indicated the applicant had been hospitalized in
Vietnam on 8 September 1968 after having frequent right-sided headaches for
several weeks.  It noted that the applicant related a different history
from that recorded on the transfer records.  He reported being on a truck
convoy on           8 September 1968 and then recalled nothing until he was
at the 2d Surgical Hospital.  He recalled being placed on a helicopter and
evacuated to the 249th General Hospital.  He recalled speaking with another
Soldier who was on the helicopter who told him he had been picked up after
his convoy had been detonated by mines.  He subsequently leaned from his
mother, who received a letter from a Soldier who was also on the convoy,
that he was thrown off the back of a truck after it had hit a hole.

9.  The MEB Narrative Summary noted the applicant's diagnoses as left
occipital linear skull fracture; right frontal intercerebral (sic)
hematoma; right frontal craniotomy; and status post-craniotomy with no
evidence of neurological deficit.  The MEB recommended the applicant be
returned to duty with a follow-up visit in a neurology clinic in three
months with limitations of not being subjected to strenuous physical
activities.

10.  The applicant was returned to duty and assigned to Fort Carson, CO on
or about 6 January 1969.  He was released from active duty on 9 June 1969
with an approved early separation to attend school after completing 1 year,
9 months, and 10 days of creditable active service.

11.  The applicant provided a letter, dated 27 November 1968, a Soldier who
was on the truck with the applicant had written to the applicant's mother.
The Soldier mentioned, in two places, that the applicant " fell off the
truck."  The Soldier also mentioned something (partially illegible) that
happened to the applicant "around Sept 9 or 10 because we had a stand down
on the 12th.  I got to the co. a few days before the stand down…"

12.  The applicant's name is not on the Republic of Vietnam Casualty
Roster.

13.  The applicant's DA Form 20 (Enlisted Qualification Record), item 40
(wounds) contains a pencil entry "left occipital linear skull fracture 8
Sep 68."

14.  Army Regulation 600-8-22 provides policy and criteria concerning
individual military decorations.  In pertinent part, it states that the
Purple Heart is awarded to any member of an Armed Force who has been
wounded or killed in any action
against an enemy of the United States.  The wound must have required
treatment by a medical officer and records of medical treatment for wounds
or injuries received in action must have been made a matter of official
record.  When contemplating an award of the Purple Heart, the key issue
that commanders must take into consideration is the degree to which the
enemy caused the injury.  The fact that the proposed recipient was
participating in direct or indirect combat operations is a necessary
prerequisite, but is not sole justification for award.

DISCUSSION AND CONCLUSIONS:

1.  There is evidence of record to show the applicant was severely injured
while in Vietnam; however, there is insufficient evidence to confirm that
his injuries were caused by the enemy.

2.  An unidentified Soldier in Japan told the applicant his convoy had been
"detonated by mines."  A Soldier who was on the truck with the applicant
merely mentioned that the applicant fell off the truck and made no mention
of enemy gunfire or mines.

3.  Item 40 of the applicant's DA Form 20 contains a pencil entry
indicating he incurred his injuries on 8 September 1968.  While the 11
September 1968 casualty roster indicated he had been hospitalized on 8
September 1968, the Soldier who was on  the truck with the applicant
inferred that the applicant was with his unit on 9 or 10 September 1968, so
the entry in item 40 is inconsistent with some of the other evidence.

4.  The applicant's name is not on the Republic of Vietnam Casualty Roster.
 The fact he had not yet arrived at his unit was irrelevant.  Any one of
the three hospitals at which he was treated could have placed his name on
the Roster.

5.  Regrettably, there is insufficient evidence to show the applicant met
the eligibility criteria for award of the Purple Heart.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 June 1969; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 8 June 1972.  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

__fne___  __mkp___  __cak___  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 N. Eichorn_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040002524                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050303                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |107.0015                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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