RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         02 DECEMBER 2004
      DOCKET NUMBER:  AR2004104598


      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. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond Wagner                |     |Chairperson          |
|     |Mr. Thomas O'Shaughnessy          |     |Member               |
|     |Ms. Laverne Berry                 |     |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 was wounded in combat while in Vietnam
during TET 1969.  His doctor pinned the award on his pajamas.  He was
medically evacuated that night to Japan.  Orders were never issued probably
because of the chaos in and around Saigon, and the fact that he was only
there for ten hours before he was sent to Japan.  He states that the
"commo" bunker took four direct hits from rockets, causing the bunker to
collapse upon himself and others.  He was being attended by medical
personnel while he was calling in and directing gunships and artillery fire
upon the enemy forces.  He had "frag" wounds to his left hand, left shin
bone, and a flesh wound underneath his left big toe.  He re-injured his
cervical spine and sustained a compound fracture of the left distal femur.


3.  The applicant provides copies of statements from a physician of the
Anderson Orthopaedic Clinic, P.A. in Anderson, South Carolina.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 30 June 1971.  The application submitted in this case is
dated        17 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 entered on active duty on 23 August 1946.  He was
discharged on 21 January 1947.  He reenlisted in the Army on 20 May 1949
and remained on continuous active duty until his retirement in 1971.

4.  The applicant's past medical history shows that he was treated for an
ankle sprain, possibly in 1959; and for an injury to his left thumb on 12
June 1959.  The medical record shows that there was a metallic foreign body
measuring approximately two millimeters in greatest diameter in the region
of the base
of the first metacarpal.  He was treated for a painful right shoulder, on
             11 September, again possibly in 1959.

5.  In June and July 1957 the applicant was treated for cellulitis without
lamphangitis to his right knee.  In March 1960 he was treated for a
possible fracture to his left ankle.

6.  On 12 December 1963 the applicant was involved in an automobile
accident.  He sustained a fracture to his left tibia and a laceration of
his scalp.

7.  On 11 March 1967, the applicant, then assigned to the 10th Special
Forces Group in Germany, upon the recommendation by a medical board of
officers, was returned to the United States for evaluation and treatment at
Womack Army Hospital at Fort Bragg, North Carolina.

8.  On 31 July 1968 orders were published assigning the applicant to
Vietnam with a reporting date of 27 August 1968 to the Overseas Replacement
Station at Fort Lewis, Washington, for onward movement to Vietnam.  On 29
August 1968 orders were published diverting the applicant to Walter Reed
Army Hospital.  On 11 September 1968 he was transferred as a patient to the
Medical Holding Company at the United States Army Hospital, Fort Gordon,
Georgia.

9.  On 12 November 1968 the Army Hospital Special Treatment Center at Fort
Gordon published orders reassigning the applicant to Vietnam.  The
applicant arrived in Vietnam in January 1969 and was assigned to
Headquarters, Military Assistance Command, Vietnam in Saigon.

10.  The applicant's DA Form 20 (Enlisted Qualification Record) shows that
on    13 March 1969 he was a patient in the 3d Field Hospital, that on 31
March 1969 he was a patient at the 269th General Hospital at Camp Drake,
Japan, and that on 30 April 1969 he was a patient at the Medical Holding
Company of the United States Army Hospital Special Treatment Center at Fort
Gordon.  The applicant's DA Form 20 contains the pencil entry, "Frag wound
left thigh 13Mar69."  That form does not show award of the Purple Heart.

11.  In May 1969 the applicant was assigned to the Military Police School
at Fort Gordon.  On 18 December 1969 the applicant was discharged from the
Army.  He reenlisted for three years the following day.  The applicant's DD
Form 214 does not show award of the Purple Heart.

12.  In November 1970 he was assigned to Korea.  He returned to the United
States in January 1971 and was assigned as a patient to the Medical Holding
Company at the Fort Gordon medical activity.  In February 1971 he was
reassigned to the Army Southeastern Signal School at Fort Gordon.  In March
1971 the applicant applied for retirement.  His request was approved and he
was retired for length of service on 30 June 1971.  His DD Form 214 does
not show award of the Purple Heart.

13.  Prior to his retirement, the applicant underwent a medical
examination.  The 7 May 1971 report of that examination indicates that the
applicant was medically qualified for retirement with a physical profile
serial of 1 3 3 1 1 1.  That report indicates his medical defects as hiatus
hernia, mild cervical radiculitis, and moderate arthritis of his left knee.
 Medical consultations show that he was evaluated for osteoarthritis
because of an old fracture of supracondylar, left femur.  He was determined
to have moderate arthritis of his left knee and right elbow.  In the report
of medical history that he furnished for the examination, the applicant
stated that his health was poor.  He did not indicate on that report that
he had an injury or condition as a result of being wounded in action.

14.  On 28 June 1971 the applicant applied to the Veteran's Administration
(VA) for compensation for his medical conditions, which he listed as
spondylosis, cervical spine – 1965; osteoarthritis, cervical with left
ulnar nerve radiculopathy – 1965; old leg injury residuals – 1963; and
arthritis, right elbow – 1971.

15.  In response to a request from the applicant's son, on 17 December
1991, the Army Personnel Center in St. Louis authorized the issuance of
awards to the applicant.  The list of awards authorized did not include the
Purple Heart.

16.  The medical reports that the applicant submits with his request show
that he was being treated for problems with his left knee.  On one report,
his physician indicated that the applicant had stated that he had a history
of shrapnel wounds in the left hand, and had previous shrapnel wounds to
his tibia.  The doctor stated that x-rays of his left hand and left knee
showed evidence of shrapnel fragments in the proximal end of the first
metacarpal and also the proximal second metacarpal.  There was no evidence
of shrapnel to the tibia.  In a second report, the applicant's doctor
indicated that there was significant arthritis change and evidence of a
previous healing fracture, as well as previous bony injury to the proximal
tibial, anterior tibia.  The remaining reports focuses on the problems that
the applicant had with his left foot and left knee.  One of those reports
indicated that the applicant had an injury to his left knee while in the
military, apparently had a compound fracture of his left supracondylar
femur, re-injured his knee in 1969, and had an aspiration of his knee.

17.  Army Regulation 600-8-22 provides that the Purple Heart is awarded for
a wound sustained as a result of hostile action. Substantiating evidence
must be provided to verify that the wound was the result of hostile action,
the wound must have required treatment, and the medical treatment must have
been made a matter of official record.

18.  The Vietnam Casualty Roster maintained by this agency does not list
the applicant as having been wounded in action.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding his contentions, there is insufficient evidence to show
that the applicant was wounded in action.  The pencil note on his
qualification record notwithstanding, there is no medical documentation
indicating that he was treated for a wound sustained in Vietnam, either to
his left thigh or to any other portion of his body.  The medical statements
that he submits with his request only indicate that he had certain medical
conditions, to include shrapnel fragments of the bones in his left hand,
but no evidence to show that those conditions were a result of his being
wounded in action.  Noted is a medical report going back to 1959 that shows
he had a shrapnel fragment to a bone in his left hand.

2.  The applicant's statement that he was immediately evacuated to Japan,
thus orders were never issued for award of the Purple Heart, is not
consistent with the evidence of record.  He was a patient at the 3d Field
Hospital in Vietnam on       13 March 1969, but not evacuated to Japan
until 31 March 1969, almost two weeks later.

3.  Noted is the applicant's two DD Forms 214 (Report of Transfer or
Discharge), one reflecting his discharge in December 1969 and the other his
retirement in June 1971.  Neither report, which he signed attesting to
their authenticity, show award of the Purple Heart.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 June 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         29 June 1974.  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

___RW__  ___TO __  __LB____  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.




                                  ____Raymond Wagner______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004104598                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041202                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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