RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 December 2005
      DOCKET NUMBER:  AR20050001250


      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. Eric S. Moore                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Leonard G. Hassell            |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 that he be awarded the Purple Heart.

2.  The applicant states he was wounded in the left (L) eye during a mortar
attack on 5 January 1971.  A mortar round blew something into his left eye
while he was running to the flight line to climb into a helicopter.  In
closing the applicant states that he feels the injury warrants the Purple
Heart.

3.  The applicant provides a statement, copies of a page labeled (symptoms,
diagnosis, treatment, treating organization), two pages of medical record
consultations, a page from his rating decision letter from the Veterans
Affairs, his DD Form 214 (Certificate of Release or Discharge from Active
Duty), and a letter granting him combat related special compensation from
the Physical Disability Agency.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 31 August 1992, the date of his separation from active duty.
The application submitted in this case is dated 18 January 2005.

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. After having had prior enlisted service, the applicant was commissioned
and entered active duty.  He retired on 31 August 1992.

4.  The applicant's DD Form 214 does not show award of the Purple Heart in
item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons
Awarded or Authorized).

5.  There are no orders in the applicant's records that show he was awarded
the Purple Heart.  There are no medical records contained in the available
records.


6.  The applicant's name is not listed on the Vietnam Casualty Roster.

7.  The applicant submitted a form showing that someone was treated on
       5 January 1971 at the 228th Flight Dispensary for being hit in L eye
by a small rock during mortar attack and that the small particle center of
cornea L eye was removed.

8.  The applicant submitted a medical record consultation sheet dated 11
June 1992, that has the entry for 25 June 1992 as "fragments in the OS (L
eye) from Vietnam".

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part,
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 required
treatment, and the medical treatment must have been made a matter of
official record. This regulation also provides that there is no statute of
limitations on requests for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of entitlement to the Purple Heart was carefully
considered.  However, there is insufficient evidence to support this
contention.  By regulation, in order to award the Purple Heart it is
necessary to establish that a Soldier was wounded in action, that the wound
required treatment by a medical officer, and the treatment record must have
been made a matter of official record.

2.  The evidence provides no confirmation that the applicant was ever
wounded/injured in action.  It shows that the applicant received fragments
in his left eye; however, it does not show how or when the incident
occurred.  His record is void of any documentary evidence that shows he was
ever treated for a wound sustained in action, or awarded the Purple Heart.

3.  Further, the Purple Heart is not included in the list of authorized
awards listed on the applicant's DD Form 214, which he authenticated with
his signature.  His signature on the separation document indicates he
verified that the information it contained was correct.  Finally, his name
is not included on the Vietnam Casualty Roster, the official DA list of
Republic of Vietnam battle casualties.

4.  Although the veracity of the applicant's claim that he sustained his
injuries in the Republic of Vietnam is not in question, lacking any
corroborating evidence of record showing that he was treated for a
wound/injury that was the direct result of or caused by enemy action, the
regulatory burden of proof necessary to support award of the Purple Heart
has not been satisfied in this case.  As a result, his request for the
Purple Heart must be denied in the interest of all those who served in the
Republic of Vietnam and who faced similar circumstances.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 August 1992.  Therefore, the time
for the applicant to file a request for correction of an error or injustice
expired on          30 August 1995.  Although the applicant did not file
within the ABCMR's statute of limitations, it is appropriate to waiver
failure to timely file in this case based on the fact there is no statute
of limitations on requests for award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___mjf __  ___lgh __  ___jns____  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 N. Slone_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050001250                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051214                                |
|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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