RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 April 2007
      DOCKET NUMBER:  AR20060013406


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Ms. Ernestine R. Fields           |     |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.  In two separate applications, the applicant requests, in effect, that
his records be corrected to show he received a disability retirement and
that he is entitled to the Purple Heart (PH).

2.  The applicant states, in effect, that he injured his spine repelling,
he has Graves disease due to Agent Orange, and that he received a 2-inch
knife wound in the Republic of Vietnam (RVN) in 1969.  He claims he applied
for the PH in June 1969 through the Department of Veterans Affairs (VA)
office in Volusia County, Florida and his paperwork was lost; and he
reapplied at the VA office in Sanford, Florida.  He also states he did have
records of him being wounded in 1968, but furnished his records to the PH
department.  He claims the medical records of his unit were destroyed in
the RVN by fire, wind, and rain, and he would like his request for the PH
to be reconsidered.

3.  The applicant provides the following documents in support of his
applications: 3 Self-Authored Statements; Report of Medical History (SF 89)
and Report of Medical Examination (SF 88), dated 4 April 1969;
Chronological Record of Medical Care (SF 600), dated October 1968; VA
Rating Decision, dated 11 April 2005; and VA Medical Treatment Records with
associated documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 30 September 1990, the date of his release from active
duty for retirement.  The applications submitted in this case are dated 14
September 2006 and 16 February 2007, respectively.

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 that on 30 September 1990, he was
honorably REFRAD for the purpose of length of service retirement.  At that
time, he held the rank of sergeant first class (SFC), and he had completed
total of 20 years and
9 days of creditable active military service.
4.  The applicant's Enlisted Qualification Record (DA Form 20) shows he
served in the RVN from 1 April 1968 through 5 April 1969.  Item 40 (Wounds)
is blank and the PH is not included in the list of authorized awards
contained in Item 41 (Awards and Decorations).  The applicant last audited
the DA Form 20 on 5 June 1971.  Documents on file in his Official Military
Personnel File (OMPF) shows that during his RVN tour, he was assigned to
the 31st Engineer Battalion.

5.  The applicant's Personnel Qualification Record (DA Form 2-1), which he
last reviewed on 5 June 1989, shows that he completed overseas tours in the
RVN, Korea (16 June 1976-15 June 1977), and two tours in Panama.  Item 9
(Awards, Decorations & Campaigns) shows he earned the following awards
during his active duty tenure:  National Defense Service Medal (NDSM);
Vietnam Service Medal (VSM); Army Commendation Medal (ARCOM); RVN Campaign
Medal Army Good Conduct Medal (AGCM) 6th Award; Army Service Ribbon (ASR);
Overseas Service Ribbon (OSR) (3); Noncommissioned Officer Professional
Development Ribbon (NPDR-3); 3 Overseas Service Bars; Driver's Badge; and
Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  The PH is
not included in this list of authorized awards.

6.  The applicant's Military Personnel Records Jacket (MPRJ) is void of any
orders or other documents indicating the applicant was ever recommended
for, or awarded the PH by proper authority while serving on active duty.
Further, his record does not contain any medical treatment records that
show he was treated for a combat related wound or injury he received as a
result of enemy action.  It also contains no documents or medical treatment
records showing he was suffering form a disabling physical condition at the
time of his discharge.

7.  On 30 September 1990, the applicant was honorably REFRAD for the
purpose of length of service retirement.  The separation document (DD Form
214) he was issued at the time confirms he was separated under the
provisions of chapter 12, Army Regulation 635-200, by reason of length of
service retirement.  Item 13 (Decorations, Medals, Badges, Citations and
Campaign Ribbons Awarded or Authorized) shows he earned the following
awards:  ASR; NDSM; AGCM (6th Award); VSM; ARCOM; RVN Campaign Medal;
Overseas Service Ribbon (3); Overseas Service Bars (2); Driver Badge;
Sharpshooter Marksmanship Qualification Badge with Rifle Bar; RVN Civil
Actions Honor Medal First Class Unit Citation; Expert Field Medical Badge;
NPDR (3); and Meritorious Service Medal.  The PH is not included in the
list of authorized awards contained in Item 13.

8.  The applicant provides SFs 88 and 89, which were prepared during a
separation physical examination he received on 4 April 1969.  These
documents show he was in Good health and that he was medically cleared for
separation by competent medical authority.  The SF 88 does contain the note
"2 inch Scar (Vietnam Injury)" in response to the question "identifying
body marks, scars, tattoos" contained in the Clinical Evaluation portion of
the SF 88.  He also provides an SF 600 that shows he was treated for a rash
on 27 and 28 October 1968.  None of these documents provide any indication
that the applicant was wounded or injured as a result of enemy action.

9.  The applicant also provides an extract of a VA Rating Decision he
received on 11 April 2005.  This document indicates the applicant was
granted service connection and a 10 percent disability rating for diabetes
mellitus type II associated with herbicide exposure.  This document
indicates there was no evidence indicating the applicant was taking
medication or that he had a requirement for insulin or was dieting to
control his condition, which if applicable would support a 20 percent
disability rating.  This document also shows the VA has the applicant's
service medical records for the period 3 August 1966 through 30 September
1990; however, it gives no indication that the applicant was wounded in
action or that he was ever treated for a combat-related wound or injury
while serving on active duty.

10.  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.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) establishes the Army Physical Disability Evaluation System
(PDES) and establishes the policies for determining whether a Soldier is
unfit to perform his/her duties due to a physical disability.  In each
case, it is necessary to compare the nature and degree of physical
disability with the requirements of the duties the Soldier reasonably may
be expected to perform.  Separation by reason of disability requires
processing through the PDES.  Chapter 4 contains PDES processing guidance,
which includes convening an MEB to document a Soldier's medical status and
the PEB, which evaluates cases when the MEB determines the medical
conditions is disqualifying for further service.  The PEB evaluates all
cases of physical disability equitably for the Soldier and the Army and
investigates the nature, cause, degree of severity, and probable permanency
of the disability of Soldiers.  It also evaluates the physical condition
against the physical requirements of the Soldier's particular office,
grade, rank, or rating.  Finally, it makes findings and recommendations
required by law to establish the eligibility of a Soldier to be separated
or retired because of physical disability.

12.  Title 38, United States Code, sections 1110 and 1131, permits the VA
to award compensation for a medical condition which was incurred in or
aggravated by active military service.  The VA, however, is not required by
law to determine medical unfitness for further military service.  The VA,
in accordance with its own policies and regulations, awards compensation
solely on the basis that a medical condition exists and that said medical
condition reduces or impairs the social or industrial adaptability of the
individual concerned.  The VA can evaluate a veteran throughout his
lifetime, adjusting the percentage of disability based upon that agency's
examinations and findings.  However, these changes do not call into
question the application of the fitness standards and the disability
ratings assigned by proper military medical authorities during the
applicant’s processing through the Army PDES.

13.  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. A wound is defined as an injury to any part of the body from an
outside force or agent sustained under conditions defined by this
regulation.  It stipulates that 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.

14.  Paragraph 2-13 of the awards regulation contains guidance on the
Vietnam Service Medal.  It states, in pertinent part, that a bronze service
star is authorized with this award for each RVN campaign a member is
credited with participating in.  Table B-1 contains a list of RVN
campaigns.  It shows that during the applicant’s tenure of assignment,
campaign credit was awarded for the Vietnam Counteroffensive Phase IV,
Vietnam Counteroffensive Phase V, Vietnam Counteroffensive Phase VI, and
TET 69 Counteroffensive campaigns.

15.  Paragraph 2-20 of the awards regulation contains guidance on the Korea
Defense Service Medal (KDSM).  It states, in pertinent part, that this
award is authorized to members who served in Korea from 28 July 1954 to a
date to be determined by the Secretary of Defense.

16.  Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit
Register) establishes the eligibility of individual members for campaign
participation credit, assault landing credit, and unit citation badges
awarded during the Vietnam Conflict.  It confirms that during his tenure of
assignment in the RVN, the applicant’s unit (31st Engineer Battalion)
received the RVN Civil Actions Honor Medal First Class Unit Citation.
Department of the Army General Order Number 8, dated in 1974, authorized
the award of the Republic of Vietnam Gallantry Cross with Palm Unit
Citation to all personnel assigned to the RVN from 8 February 1962 through
28 March 1973.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to disability
compensation for medical conditions he incurred while serving on active
duty was carefully considered.  However, there is insufficient evidence
showing the applicant was suffering from a physically disabling condition
that would have supported his retirement processing through the PDES, or a
medical (disability) retirement at that time.  The evidence of record does
show the applicant incurred diabetes as a result of herbicide exposure
while serving on active duty.  However, there is no indication that this
condition rendered him unfit for further service or for length of service
retirement at the time he was REFRAD on 30 September 1990.  The applicant
has pursued disability compensation through the proper agency by submitting
his claims to the VA.

2.  The VA, in accordance with its own policies and regulations, awards
compensation solely on the basis that a medical condition exists and that
said medical condition reduces or impairs the social or industrial
adaptability of the individual concerned.  The VA can evaluate a veteran
throughout his lifetime, adjusting the percentage of disability based upon
that agency's examinations and findings.  Therefore, if the applicant
believes he is entitled to additional disability compensation, he should
pursue that matter through VA appellate channels.

3.  The applicant's claim of entitlement to the PH for a knife wound he
received in the RVN was also carefully considered.  However, by regulation,
in order to support award of the PH there must be evidence that the wound
for which the award is being made was received as a result of enemy action,
that the wound was treated by military medical personnel, and a record of
this treatment must have been made a matter of official record.  Item 40 of
his DA Form 20 is blank, which indicates he was never wounded in action and
Item 41 does not include the PH.  He last audited this record on 5 June
1971, which was 2 years after his departure from the RVN.  In effect, this
audit was his verification that the information contained on the DA Form
20, to include the Item 40 and Item 41 entries, was correct at that time.
4.  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 tenure on active duty, and it contains no medical treatments
records that indicate he was ever treated for a combat-related wound while
on active duty.  Further, the list of authorized awards contained on his DD
Form 214 does not include the PH.  Finally, his name is not included on the
Vietnam Casualty Roster, the official DA list of RVN battle casualties.

5.  The veracity of the applicant's claim that he received knife wound
while serving in the RVN is not in question.  However, absent any evidence
of record showing this wound was received as a result of enemy action, the
regulatory burden of proof necessary to support award of the PH has not
been satisfied in this case.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration regarding medical retirement and award of
the PH on 30 September 1990, the date of his retirement.  Therefore, the
time for him to file a request for correction of any error or injustice
expired on
29 September 1993.  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.

7.  The evidence of record shows that the applicant is entitled to the RVN
Gallantry Cross with Palm Unit Citation and 4 bronze service stars with his
VSM based on his service and campaign participation in the RVN.  It also
shows that based on his service in Korea, he is entitled to the KDSM.  The
omission of these awards from his record is an administrative matter that
does not require Board action.  Thus, the Case Management Support Division
(CMSD), St. Louis, Missouri, will administratively correct his records as
outlined in paragraph 3 of the BOARD DETERMINATION/RECOMMENDATION section
below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__KLW__  __LMD __  __ERF __  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 disability
retirement or 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.

3.  The Board determined that administrative error in the records of the
individual concerned should be corrected.  Therefore, the Board requests
that the CMSD-St. Louis administratively correct the records of the
individual concerned to show his entitlement to the Republic of Vietnam
Gallantry Cross with Palm Unit Citation, Korea Defense Service Medal, and 4
bronze service stars with his Vietnam Service Medal; and by providing him a
correction to his separation document that includes these awards.




                                  _____Kenneth L. Wright____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060013406                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/04/10                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1990/09/30                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Length of Svc Retirement                |
|BOARD DECISION          |DENY with Note                          |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  189  |110.0000                                |
|2.  46                  |107.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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