RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           21 July 2005
      DOCKET NUMBER:  AR20040010080


      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. John Infante                  |     |Chairperson          |
|     |Mr. Robert J. Osborn              |     |Member               |
|     |Ms. Brenda K. Koch                |     |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, he received a concussion injury caused
by enemy generated explosions.

3.  The applicant provides a Chronological Record of Medical Care (SF 600)
and Separation Document (DD Form 214) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 1 September 1971.  The application submitted in this case
is dated
2 November 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 initially enlisted in the Regular
Army and entered active duty on 16 October 1967.  He successfully completed
basic combat training and advanced individual training (AIT) at Fort Polk,
Louisiana.  Upon completion of AIT, he was awarded military occupational
specialty (MOS) 11B (Infantryman).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he was
assigned to the Republic of Vietnam (RVN) and arrived there on 9 August
1968.  He was assigned to Company A, 1st Battalion, 2nd Infantry Regiment,
performing duties in MOS 11B (Grenadier).

5.  On 7 October 1967, while serving in the RVN, the applicant was
honorably discharged for the purpose of immediate reenlistment.  On 8
October 1968, he reenlisted for 3 years.  On 14 October 1968, he was
reassigned to the 1097th Transportation Command, RVN, and assigned duties
in MOS 61B (Watercraft Operator).

6.  Item 40 (Wounds) of the applicant’s DA Form 20 is blank and contains no
entry indicating he was wounded/injured in action.  Item 41 (Awards and
Decorations) does not include the PH in the list of authorized awards
entered.  The applicant last audited the DA Form 20 on 11 September 1969.

7.  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, or awarded the PH by
proper authority.

8.  On 1 September 1971, the applicant was honorably released from active
duty after completing a total of 3 years, 10 months and 16 days of active
military service.  The separation document (DD Form 214) he was issued at
the time, as amended by a 23 May 1994 correction to the separation document
(DD Form 215), shows he earned the following awards during his active duty
tenure:  National Defense Service Medal, Army Commendation Medal with 1st
Oak Leaf Cluster, Vietnam Service Medal with 4 bronze service stars, RVN
Campaign Medal with 60 Device, RVN Gallantry Cross with Palm Unit Citation,
RVN Civil Actions Honor Medal First Class Unit Citation, Army Good Conduct
Medal, Sharpshooter Qualification Badge with Rifle Bar (M-16), Expert
Qualification Badge with Rifle Bar (M-14) and 2 Overseas Bars.  The PH was
not included in this list of awards, and the applicant authenticated this
document with his signature in Item 32 (Signature of Person Being
Transferred or Discharged).

9.  The applicant provides a SF 600 containing an entry, dated 14 September
1968, which indicates he was treated for soreness in his left ear (acoustic
trauma) that resulted from grenade explosions.  This document does not
indicate the injury was the direct result of, or caused by enemy action.

10.  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.

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 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 he received a combat related injury to
his ear while serving in the RVN, which entitles him the PH, and the
supporting documents he provided were 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 an ear
injury on 14 September 1968 as a result of grenade explosions.  However,
the SF 600 gives no indication that the explosions, or ear injury, were the
direct result of, or caused by enemy action.

3.  Further, the applicant’s MPRJ is void of any orders, or other
documents, 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.  Item 40 of his DA Form 20 is blank, and contains no entry indicating
he was wounded/injured in action.  The PH is also not included in the list
of awards contained in Item 41, and he last audited the DA Form 20 on 11
September 1969.  This audit constituted his verification that the
information contained in the record was correct as of the audit date.

4.  The PH is also not included in the list of awards contained in the
applicant’s final DD Form 214, as amended, 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 1 September 1971.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 31 August 1974.  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

___JI ___  ___RJO _  ___BKK_  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.




            ____John Infante_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040010080                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/07/21                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1971/09/01                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Early Out -School                       |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  61   |107.0015                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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