RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           9 June 2005
      DOCKET NUMBER:  AR20040006945


      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. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Lester Echols                 |     |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, in effect, award of the Purple Heart (PH).

2.  The applicant states, in effect, that he was wounded in his right foot
by a bullet ricochet when the aircraft he was returning to base camp in
came under small arms fire.

3.  The applicant provides a Chronological Record of Medical Care (SF 600)
in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 31 August 1989.  The application submitted in this case is
dated
29 August 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’s record shows that he enlisted in the Regular Army and
entered active duty on 8 August 1969.  He was initially trained in and
awarded military occupational specialty (MOS) 71H (Personnel Specialist).

4.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows that
he served in the Republic of Vietnam (RVN) from 7 February through 16 March
1972 and was assigned to Headquarters and Headquarters Company (HHC), 2nd
Signal Group, performing duties in MOS 71H as the detachment clerk.

5.  Item 9 (Awards and Decorations) of the applicant’s DA Form 2-1 does not
include the PH in the list of earned awards, and the applicant last
reviewed this record on 30 August 1989.

6.  The applicant’s Military Records Jacket (MPRJ) contains no orders, or
other documents that indicate the applicant ever received a wound/injury as
a direct result of, or that was caused by enemy action.  Further, there are
no documents indicating that he was ever treated for a combat related
wound/injury, or that he was ever recommended for the PH.

7.  On 31 August 1989, the applicant was honorably released from active
duty for the purpose of retirement after completing a total of 20 years and
22 days of active military service.  The separation document (DD Form 214)
he was issued at the time shows that he earned the following awards during
his active duty tenure:  RVN Gallantry Cross with Palm Unit Citation,
National Defense Service Medal, Vietnam Service Medal, Driver Badge, Army
Commendation Medal 2nd Oak Leaf Cluster, Noncommissioned Officer
Professional Development Ribbon with Numeral 3, Overseas Service Ribbon
with Numeral 3, Army Good Conduct Medal 6th Award, RVN Campaign Medal, Gold
Recruiter Badge with 2 Sapphire Stars, Army Achievement Medal, and
Meritorious Service Medal 1st Oak Leaf Cluster.  The PH was not included in
this list of awards.

8.  The applicant provides a SF 600, which shows he was treated for foot
injury on 18 April 1970.  The form indicates he received the injury while
in Con Son and that the wound was cleaned.  The treatment record does not
indicate that the applicant’s injury was combat related.

9.  In connection with the processing of this case, a member of the Board
staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.
The applicant’s name was not included on this list.

10.  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 award of the PH.  It states, in pertinent
part, that in order to award a PH there must be evidence that the wound for
which the award is being made was received as a result of enemy action, the
wound must have required medical treatment and the medical treatment must
have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the foot injury he was treated for on
18 April 1970 was received from small arms fire while he was on a flight
returning to base camp 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 he was treated by military
medical personnel for the wound for which the award is being made, and a
record of this medical treatment must have been made a matter of official
record.

2.  The evidence of record shows the applicant was treated for a foot
injury on
18 April 1970 that he received in Con Son.  However, there is no evidence
of record to confirm that this wound was received as a direct result of, or
was caused by enemy action.

3.  Further, there are no orders or documents on file in the applicant’s
MPRJ that indicate he was ever wounded/injured in action.  The record is
also void of any indication that he was recommended for, or awarded the PH.
 The PH is also not included in the list of awards contained in Item 9 of
his DA Form 2-1.  He last reviewed this record on 30 August 1989, the day
prior to his retirement.  This review constituted his verification that the
information contained in the record was correct as of the date of the
review.

4.  The PH is also not included in the list of awards contained in the
applicant’s final DD Form 214, and his name is not included in the Vietnam
Casualty Roster, the official DA list of RVN battle casualties.  As a
result, the regulatory burden of proof necessary to support award of the PH
has not been satisfied in this case.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 August 1989, the date of his
retirement.  Therefore, the time for him to file a request for correction
of any error or injustice expired on 30 August 1992.  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

___MHM_  ___LE __  ___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.




            ____Melvin H. Meyer______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040006945                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/06/09                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1989/08/31                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  61   |107.0015                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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