RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         24 August 2006
      DOCKET NUMBER:  AR20060002419


      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:

|     |Ms. Jeanette R. McCants           |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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 was injured during combat action in
the Republic of Vietnam (RVN) on 21 March 1967.  He claims he was offered
the PH; however, he elected not to go to the battalion aid stations to get
his ankle fixed because he did not have time.

3.  The applicant provides his separation document (DD Form 214) and Bronze
Star Medal with "V" (Valor) Device General Orders with attachments in
support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 30 June 1978, the date of his release from active duty
(REFRAD) for retirement.  The application submitted in this case is dated 2
February 2006.

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 he was commissioned a second lieutenant in
the Regular Army and entered active duty on 4 June 1958.  His Personnel
Qualification Record (DA Form 66) shows that he completed two tours of duty
in the RVN.  The first from 7 November 1966 to 10 November 1967, and the
second from 20 September 1970 through 2 September 1971.  This record
contains no entries indicating the applicant was ever wounded in action,
and the PH is not included in the list of awards contained in Item 9
(Awards, Decorations, & Campaigns).  Item 33 (Date) confirms he last
reviewed the DA Form 2-1 on
8 December 1977.

4.  The applicant's Military Personnel Records Jacket (MPRJ) is void of any
orders, or other documents showing he was ever recommended for, or awarded
the PH by proper authority.  The MPRJ also contains no medical treatment
records that indicate he was ever treated for a combat related wound or
injury.

5.  On 30 June 1978, the applicant was honorably released from active duty
after completing a total of 20 years and 27 days of active military
service.  The
DD Form 214 he was issued at the time shows he earned the following awards
during his active duty tenure:  Silver Star (2); Legion of Merit (2);
Bronze Star Medal (4) with "V" Device (2); Air Medal (20); Meritorious
Service Medal; National Defense Service Medal (2); Ranger Tab; Master
Parachutist Badge; Combat Infantryman Badge; Vietnam Service Medal with 4
bronze service stars; RVN Campaign Medal with 60 Device; Meritorious Unit
Commendation; RVN Gallantry Cross with bronze star, gold star and 2nd Palm;
RVN Civil Actions Honor Medal First Class Unit Citation; Air Assault Badge;
and 4 Overseas Service Bars.  The PH is not included in the list of awards,
and the applicant authenticated the separation document with his signature
on the date of his REFRAD for retirement.

6.  In support of his application, the applicant provides a Bronze Star
Medal with "V" Device orders and the documents submitted to support this
award.  These documents indicate the applicant injured his ankle when he
jumped from the helicopter at the point of action with enemy forces.

7.  During the processing of this case, a member of the Board staff
reviewed the Department of the Army Casualty Roster.  The applicant's name
was not included on this RVN battle casualty list.

8.  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.

9.  The awards regulation defines a wound 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 was
received as a direct result of, or was caused by enemy action, the wound
required treatment by a medical officer.  This treatment must be supported
by records of medical treatment for the wound 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
documents he submitted were carefully considered.  However, by regulation,
in order to support award of the PH, there must be evidence confirming that
the wound for
which the awards is being made was received a result of enemy action, that
it required treatment by military medical personnel, and a record of this
treatment must be made a matter of official record.

2.  The PH is not included in the list of authorized awards contained in
Item 9 of the applicant's DA Form 2-1, which he last reviewed on 8 December
1978, more than 7 years after he departed the RVN.  In effect, this review
was his verification that the information contained on the DA Form 2-1, to
include the Item 9 entries, was correct at that time.  Further, there is no
indication that the applicant made any claim of entitlement to the PH while
he remained on active duty.

3.  The applicant's MPRJ is void of any orders, or other documents showing
that he was ever recommended for, or awarded the PH by proper authority
during his active duty tenure.  It also contains no medical treatments
records that indicate he was ever treated for a combat related wound while
serving on active duty.  Further, the list of authorized awards contained
on his DD Form 214 does not include the PH, and he authenticated this
document with his signature on the date of his separation.  In effect, his
signature was his verification that the information contained on the
separation document, to include the list of awards, was correct at the time
it was prepared and issued.  Finally, his name is not included on the
Vietnam Casualty Roster, the official DA list of RVN battle casualties.

4.  The evidence provided by the applicant indicates he injured his ankle
when he jumped from a helicopter to join an engagement in action with enemy
forces.  However, there is no indication that this injury required, or was
treated by military medical personnel, or that he was recommended for, or
awarded the PH by proper authority based on this injury.  By his own
admission, he was not treated for this injury, and the PH was not awarded
at the time.  Therefore, 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 related to award of the PH on 30 June
1978, the date of his REFRAD for retirement.  Therefore, the time for him
to file a request for correction of any error or injustice expired on 29
June 1981.  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

___JRM _  __SWF__  __RCH__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice related to award of the
Purple Heart.  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.




                                  _____Jeanette R. McCants___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002419                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/08/24                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1978/06/30                              |
|DISCHARGE AUTHORITY     |10 USC 3911                             |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]