RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060011193


	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.



	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 he was assigned to Bien Hoa Army Base in Vietnam.  A rocket attack struck the ammunition dump causing it to explode.  He states the noise damaged his hearing and he was medically evacuated to Japan.  He ended up with a permanent hearing impairment.

3.  The applicant provides:

	a.  SF 502 (Narrative Summary) from the 249th General Hospital, Tokyo, Japan; and

	b.  SF 502 from Madigan Army Medical Center, Tacoma, WA.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 July 1975.  The application submitted in this case is dated 31 July 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 is a retired Chief Warrant Officer Two (CW2).  He had more than 12 years of enlisted service in the United States Marine Corps and United States Air Force, for which he received 4 awards of the Good Conduct Medal.  He served almost 8 years as a US Army Reserve warrant officer.

4.  The applicant served in Vietnam from on/about 29 May 1968 to on/about 25 October 1968.  The record shows that he had a history of hearing loss dating to 1964.  It also shows that "[S]ince he has been in RVN, he has received a permanent H-3 profile because of severe sensori-neural hearing loss. 

Approx[imately] one week ago [28 August 1968], a mortar attack struck an ammunition dump in his area, and the resulting blast exacerbated the already present hearing loss [emphasis added]."

5.  Army Regulation 600-8-22 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 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.

6.  Army Regulation 40-501, chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator 1 under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators 2 and 3 indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator 4 indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator 4 does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.physical profile

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show that he had hearing problems which pre-dated his service in Vietnam.  The records also indicate that he had an H-3 physical profile before the Bien Hoa ammunition dump exploded.

2.  Historical records show that the Bien Hoa ammunition dump exploded on 18 February 1968, some 3 months before the applicant's arrival there.


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 31 July 1975.  Therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 July 1978.  Although the applicant did not file within the ABCMR's statute of limitations, it is appropriate to waive 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.

5.  Evidence shows that the applicant’s records contain administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __pms___  __jlp___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis 

administratively correct the DD Form 214 (Report of Separation From Active Duty) dated 31 July 1975 of the individual concerned to show four awards of the Good Conduct Medal.



							William D. Powers
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060011193
SUFFIX

RECON

DATE BOARDED
20070313
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
107.0000
2.

3.

4.

5.

6.