RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            07 December 2006
      DOCKET NUMBER:   AR20060006672


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard Dunbar                |     |Chairperson          |
|     |Mr. Dale DeBruler                 |     |Member               |
|     |Mr. Larry Racster                 |     |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, in effect, that he was burned on the right hand
by handling mortar rounds in Vietnam and was treated in the aid station;
however, for reasons not explained, the medical records indicate that the
injury was not combat related.  He goes on to state that he was an
infantryman in Vietnam, which was considered a combat zone and in which he
was receiving combat pay for the protection of his nation and he disagrees
that it was not combat related.

3.  The applicant provides no additional documentation with his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 20 June 1973.  The application submitted in this case is dated
1 May 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 was inducted in San Juan, Puerto Rico on 14 August 1969
and completed his training as an infantry indirect fire crewman at Fort
Jackson, South Carolina before being transferred to Vietnam on 14 January
1970.

4.  He was assigned to C Company, 1st Battalion, 5th Cavalry Regiment, 1st
Cavalry Division, for duty as an ammo bearer.  He was advanced to the pay
grade of E-4 on 16 April 1970.  He departed Vietnam on 7 December 1970 and
was transferred to Fort Stewart, Georgia.

5.  On 17 May 1971, he was honorably discharged for the purpose of
immediate reenlistment.  He reenlisted on 18 May 1971 for a period of 6
years and a variable reenlistment bonus.

6.  On 27 February 1972, he was transferred to Germany and was assigned to
the 30th Infantry Regiment, 3rd Infantry Division.  He was promoted to the
pay grade of E-5 on 5 June 1972.

7.  On 20 June 1973, the applicant was discharged under other than
honorable conditions under the provisions of Army Regulation 635-200,
chapter 13 for unfitness, due to his involvement in frequent incidents of a
discreditable nature with civil and military authorities.  He had served 3
years, 9 months and 21 days of total active service and had 16 days of lost
time due to being absent without leave (AWOL).

8.  On 11 July 1979, the Army Discharge Review Board upgraded the
applicant’s discharge to fully honorable.  His report of separation (DD
Form 214) issued at that time indicates that the applicant was awarded the
National Defense Service Medal, the Combat Infantryman Badge, the Vietnam
Service Medal, and the Republic of Vietnam Campaign Medal.

9.  On 17 February 2005, the Chief, Awards Branch, Human Resources Command,
Alexandria, Virginia, notified the applicant that a search of unit
historical records revealed that he was entitled to awards of the Bronze
Star Medal, the Air Medal, the Valorous Unit Award, the Republic of Vietnam
Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil
Actions Honor Medal First Class Unit Citation.  That office also informed
him that the records indicated that he was treated for non-battle injuries
on 27 June 1970 and that those injuries did not qualify him for award of
the Purple Heart.  Additionally, his name was not listed on the Vietnam
Casualty Listing.  The applicant was provided a DD Form 215 (Correction to
DD Form 214) showing those awards.

10.  A review of his Official Military Personnel File fails to show any
indication that the applicant was treated for any wounds incurred as a
result of enemy action.  The applicant’s medical records were not available
for review by the Board.

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent
part, that the Purple Heart (PH) is awarded for a wound sustained as a
result of hostile action.  Substantiating evidence must be provided to
verify that: (1) the wound was the result of hostile action; (2) the wound
required medical treatment; and (3) the medical treatment was made a matter
of official record.




DISCUSSION AND CONCLUSIONS:

1.  The applicant has failed to show through evidence submitted with his
application and the evidence of record that he was wounded/injured in
action against the enemy, that the injury required medical treatment, and
that the treatment was made a matter of record.  Therefore, absent such
evidence, there is no basis to award him the Purple Heart.

2.  Although the applicant was in Vietnam, that in itself does not
constitute an automatic entitlement for a Purple Heart whenever an injury
occurs.  Therefore, in the absence of evidence to the contrary, it must be
presumed that his injury was not the result of enemy action and that the
applicant was not entitled to the award of the Purple Heart.

3.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 June 1973; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 19 June 1976.  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

__RD ___  ___DD __  ___LR___  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.




                                  _____Richard Dunbar______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006672                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061207                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |19730620                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |UNSUITABILITY                           |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |61/PH                                   |
|1.107.0015              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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