RECORD OF PROCEEDINGS


          IN THE CASE OF

      BOARD DATE:           16 November 2004
      DOCKET NUMBER:   AR2004103696


      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          |
|     |Ms. Eloise C. Prendergast         |     |Member               |
|     |Mr. Robert Rogers                 |     |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 (PH).

2.  The applicant states, in effect, that he has proof that he is entitled
to the PH and would like it added to his record.  He claims that he should
receive his PH because he has been receiving a disability for the injuries
to his ears and arm.

3.  The applicant provides a third-party statement in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 20 January 1972.  The application submitted in this case
was received on 6 February 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 he enlisted in the Regular Army and
entered active duty on 23 June 1969.  He was trained in and awarded
military occupational specialty (MOS) 11B (Infantryman) and the highest
rank he attained while serving on active duty was specialist four.

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows that
he served in the Republic of Vietnam (RVN) from 8 January 1970 through
29 October 1970.  It further shows that during this RVN tour, he was
assigned to Company L, 75th Infantry Regiment, performing duties in MOS 11B
as a scout/observer.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 is blank, which
indicates he was not wounded/injured in action while serving on active
duty.  Item 41 (Awards and Decorations) lists the following awards he
earned during his active duty tenure:  National Defense Service Medal
(NDSM), Parachutist Badge, Vietnam Service Medal (VSM), Combat Infantryman
Badge (CIB), RVN Campaign Medal with 60 Device, Army Good Conduct Medal
(AGCM), 2 Overseas Bars, and Marksman Qualification Badge with Rifle Bar
and Automatic Rifle Bars.
6.  The applicant’s medical records show he was treated for a mild
bilateral otits media on 4 April 1970.  It further shows this condition
disappeared on 10 April 1970 and he was returned to full duty.  A Clinical
Record Cover (DA Form 8-275-3) prepared at the 95th Evacuation Hospital and
6th Convalescent Center both show a condition of “Neurosensory Hearing
Loss”.  Item 3 (Type of Case) of this document indicates medical personnel
categorized this condition as disease as opposed to injury or battle
casualty.

7.  On 10 January 1972, the applicant was honorably separated after
completing 2 years, 6 months and 28 days of active military service.  The
DD Form 214 he was issued shows, in Item 24 (Decorations, Medals, Badges,
Commendations, Citations and Campaign Ribbons Awarded or Authorized), that
he earned the following awards during his active duty tenure:  NDSM, AGCM,
VSM, RVN Campaign Medal and 2 Overseas Bars.  The PH is not included in the
list of awards and the applicant authenticated this document with his
signature in Item 32 (Signature of Person Being Transferred or Discharged).


8.  On 20 June 1994, the applicant was issued a correction to his
separation document (DD Form 215) which amended Item 24 by deleting the VSM
and RVN Campaign Medal and adding the following awards:  Bronze Star Medal,
Valorous Unit Emblem, VSM with 2 bronze service stars, CIB, RVN Campaign
Ribbon with Device 1960, RVN Gallantry Cross with Palm Unit Citation,
Sharpshooter Qualification Badge with Recoilless Rifle Bar, and Marksman
Qualification Badge with Rifle and Automatic Rifle Bars.

9.  The applicant provides a third-party statement from a soldier who
served with him in the RVN.  This individual states he and the applicant
were members of an eleven-man team that participated in a combat mission on
6 July 1970.  He indicates he was severely injured while attempting to grab
an enemy grenade and was subsequently medically evacuated from the action.
He claims that while he was a patient in the hospital, the applicant, who
was also a patient, visited him.  He states the applicant was being treated
for injuries he received during the same action.  He also provides
newspaper clippings containing articles on the action.

10.  In connection with the processing of this case, a member of the Board
staff reviewed the Department of the Army Vietnam Casualty List.  The
applicant’s name was not listed as an RVN casualty on this casualty roster.
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 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 claim of entitlement to the PH and the supporting third-
party statement 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 the wound required
treatment by a medical officer, and that the record of medical treatment
was made a matter of official record.

2.  The third-party statement and accompanying newspaper clippings while
confirming the applicant was involved in the action in question and was a
patient in the hospital subsequent to the action do not provide first hand
knowledge that the condition for which the applicant was hospitalized was
the direct result of or caused by enemy action.  The medical evidence of
record confirms that while the applicant was treated for an ear condition
subsequent to the action in question, he had also been treated for a
similar ear condition prior to the event.  Further, subsequent to the
action, the ear condition was categorized as a disease and not a battle
casualty by the attending medical personnel.

3.  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.  Item 40 of his DA Form 20 is blank, indicating he was
never wounded or injured in action and there are no documents or orders on
file that indicate he was ever recommended for or awarded the PH.  His DD
Form 214 does not include the PH in the list of authorized awards and he
authenticated this document with his signature, thereby verifying that the
information it contained, to include the list of authorized awards, was
correct at the time the separation document was prepared and issued.

4.  Finally, the applicant’s name is not included on the Vietnam Casualty
Roster.  The absence of his name from this official list of RVN 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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 January 1972.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 19 January 1975.  However, he 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:

__RR_____  __ECP_  __MHM_   GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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                 |AR2004103696                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/11/16                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1972/01/20                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  61   |107.0015                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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