RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 November 2006
      DOCKET NUMBER:  AR20060002662


      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             |
|     |Ms. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Jeffrey C. Redmann            |     |Chairperson          |
|     |Mr. Robert W. Soniak              |     |Member               |
|     |Mr. David W. Tucker               |     |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, correction of his retirement date on
his DD Form 214 (Certificate of Release or Discharge from Active Duty) and
that he be awarded the Purple Heart.

2.  The applicant states, in effect, that his retirement date on his DD
Form 214 is incorrect and he was diagnosed as a biological casualty from
service during Operation Desert Storm.

3.  The applicant provides a copy of his DD Form 214, dated 30 October
1997, a copy of his rating decision by the VA (Department of Veterans
Affairs), and a copy of his retirement orders, dated 30 March 1999, in
support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 30 March 1999, the date he was placed on the Retired List by
reason of physical disability.  The application submitted in this case is
dated 8 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 enlisted in the Regular Army on
29 September 1975.  The applicant successfully completed basic combat
training at Fort Leonard Wood, Missouri, and advanced individual training
at Fort Sill, Oklahoma.  On completion of his advanced training, he was
awarded the military occupational specialty (MOS), 13B, Field Artillery
Crewman.  He was advanced to pay grade E-2 on 29 January 1976.

4.  The applicant continued to serve until he was honorably discharged on
28 July 1976, under the provisions of Army Regulation 635-200, chapter 6,
due to hardship.

5.  The applicant's military records for the period 24 March 1979 to
30 October 1997 are not available for review.
6.  All the documents containing the facts and circumstances surrounding
the applicant's separation are not present in the available records;
however, his    DD Form 214 shows that on 30 October 1997, he was honorably
separated under the provisions of Army Regulation 635-40, paragraph 4-
24b(2), for disability, temporary, in the pay grade of E-6.  He was placed
on the TDRL (Temporary Disability Retired List) effective 31 October 1997.


7.  The applicant continued to serve on the TDRL until he was removed from
the TDRL and was placed on the Retired List effective 30 March 1999, by
reason of permanent physical disability, in the rank of SSG.

8.  Item 12b (Separation Date This Period), of his DD Form 214, dated
30 October 1997, shows the entry "1997 10 30" (30 October 1997).

9.  The applicant’s DD Form 214, dated 30 October 1997, does not show the
Purple Heart as an authorized award.

10.  There is no record that the applicant was awarded the Purple Heart.
There also is no evidence in his records to show he was wounded or treated
for wounds as a result of hostile action.  There is no documented evidence
linking the applicant to exposure to low levels of chemical agents or to
those illnesses which are categorized as being Persian Gulf-related.  The
applicant's medical records are not available for review.

11.  The applicant provided a copy of his VA Rating Decision, dated
16 March 2005, which shows that he was granted compensation for service-
connected disabilities that occurred during the Gulf War on 31 October
1997, the date he was placed on the TDRL.

12.  Army Regulation 635-5 serves as the authority for the preparation and
issuance of the DD Form 214.  It states, in pertinent part, that a DD Form
214 will be issued to each individual discharged, retired or placed on the
TDRL.  It further states that a DD Form 214 will not be issued to personnel
who are being removed from the TDRL.

13.  Army Regulation 635-5 governs the preparation of the DD Form 214.  It
states, in pertinent part, that item 12b (Separation Date This Period) will
be completed to show the Soldier's transition date.  This date may not be
the contractual date if the Soldier is separated early, voluntarily
extends, or is extended to make up the lost time, or retained on AD for the
convenience of the Government.

14.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple
Heart is awarded for a wound sustained while in action against the enemy or
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.  This regulation also provides that there is no statute
of limitations on requests for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was honorably separated on
30 October 1997 under the provisions of Army Regulation 635-40, paragraph
 4-24b(2), for disability, temporary.  He was placed on the TDRL effective
31 October 1997.  He was removed from the TDRL and was placed on the
Retired List effective 30 March 1999.

2.  According to regulation, a DD Form 214 will not be issued to personnel
who are being removed from the TDRL.  There is no evidence, and the
applicant has provided none, to show that his separation date of 30 October
1997, in item 12b, of his DD Form 214, dated 30 October 1997, should be
changed to 30 March 1999, the date he was placed on the PDRL.  Therefore,
there is no basis upon which to change item 12b, of his DD Form 214, to
show the entry "1999 03 30" (30 March 1999).  His DD Form 214 is correct as
currently constituted.

3.  There are no orders officially awarding the applicant the Purple Heart
and there are no medical records available to show that he was treated for
a wound as a result of hostile action.  Therefore, there is insufficient
evidence upon which to approve an award of the Purple Heart.

4.  There is no evidence or documentation linking the applicant to
exposures to low levels of chemical agents or to those illnesses which were
categorized as being Persian Gulf-related.  The applicant also provided no
evidence to show he was diagnosed as a biological casualty from service
during Operation Desert Storm.

5.  The applicant's VA Rating Decision, dated 16 March 2005, which shows he
was granted compensation for his service-connected disabilities that
occurred during the Gulf War is insufficient as a basis upon which to
support an award of the Purple Heart.


6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 March 1999; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 29 March 2002.  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

_JCR___  __DWT__  __RWS__  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.




                                  _____Jeffery C. Redmann_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002662                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061116                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19971030                                |
|DISCHARGE AUTHORITY     |AR 635-40, paragraph 4-24b(2)           |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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