RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 July 2007
      DOCKET NUMBER:  AR20070001605


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. David K. Hassenritter         |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 has a 40 percent disability rating
awarded by the Department of Veterans Affairs (VA), and he is requesting to
be awarded the PH due to hazardous material exposure, which has caused his
bad health.

3.  The applicant provides a letter from a Rehabilitation Consultant in
support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 14 May 1968, the date of his final separation.  The
application submitted in this case is dated 27 January 2007.

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 initially enlisted in United States
Army Reserve (USAR) on 17 August 1962.  He entered initial active duty for
training (IADT) on 31 August 1962, and successfully completed basic combat
training at Fort Jackson, South Carolina, and advanced individual training
(AIT) at Fort Polk, Louisiana.  Upon completion of AIT, he was awarded
military occupational specialty (MOS) 64B (Heavy Vehicle Driver).

4.  On 24 February 1963, the applicant was honorably released from active
duty (REFRAD) upon completion of his IADT and he was returned to his USAR
unit.  The separation document (DD Form 214) he was issued at the time
shows he completed a total of 5 months and 24 days of active duty service
and that he held the rank of private/E-2 (PV2) on the date of his REFRAD.

5.  On 24 February 1963, the applicant was honorably discharged from the
USAR in order to enlist in the Regular Army (RA).  On 25 February 1963, he
enlisted in the RA and entered active duty in that status.
6.  The applicant's Enlisted Qualification Record (DA Form 20) shows he
served in the Republic of Vietnam (RVN) from 5 April 1968 through 10 May
1968.  Item 38 (Record of Assignments) shows that during his RVN tour, he
was assigned to the 597th Transportation Company, performing duties in MOS
64B as a Heavy Vehicle Driver.  Item 40 (Wounds) is blank and the PH is not
included in the awards listed in Item 41 (Awards and Decorations).  The
applicant last audited the DA Form 20 on 10 May 1968.

7.  The applicant's Military Personnel Records Jacket (MPRJ) is void of any
orders or other documents that indicate he was ever recommended for or
awarded the PH by proper authority while serving on active duty.  The MPRJ
also contains documents or medical treatment records that show he was ever
wounded in action, or treated for a combat related wound or injury by
military medical personnel.

8.  On 14 May 1968, the applicant was honorably separated under the
provisions of chapter 6, Army Regulation 635-200, by reason of Hardship.
The DD Form 214 he was issued at the time shows he completed a total of 5
years, 8 months, and 28 days of active military service, and that he held
the rank of specialist five (SP5) on the date of his discharge.  Item 24
(Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons
Awarded or Authorized) shows that he earned the following awards during his
active duty tenure:  National Defense Service Medal; Vietnam Service Medal;
RVN Campaign Medal; and Expert Marksmanship Qualification Badge with Rifle
Bar.  The PH is not included in the list of awards contained in Item 24 and
the applicant authenticated the DD Form 214 with his signature in Item 32
(Signature of Person Being Transferred or Discharged) on the date of his
separation.

9.  On 2 June 1995, the applicant was issued a correction to his separation
document (DD Form 215) at the direction of this Board.  The correction
amended his 14 May 1968 DD Form 214 by changing the entry in Item 18 (Prior
Regular Enlistments) to "2", by changing the entry in Item 22b (Total
Active Service) to "5  02  28, and by changing the list of awards in Item
24 to show he earned the following awards:  National Defense Service Medal;
Vietnam Service Medal with 1 bronze service star; Republic of Vietnam
Gallantry Cross with Palm Unit Citation; Sharpshooter Marksmanship
Qualification Badge with Pistol Bar; Expert Marksmanship Qualification
Badge with Rifle and Automatic Rifle Bars; and Republic of Vietnam Campaign
Medal with Device 1960.

10.  The applicant provides a letter form a Rehabilitative Consultant,
dated
19 January 2007.  In this letter, this individual indicates she is an
independent case manager and that she works with the VA Vocational
Rehabilitation and Employment office through the Regional Office,
Montgomery, Alabama.  She states that the applicant is enrolled in the
independent living program through the VA and she is his case manager.  She
states the applicant is enrolled in the program because he is not
reasonably feasible for him to achieve a vocational goal.  She indicates
that it has been determined the applicant is not able to work and sustain
gainful employment in a competitive job market due to his disabilities.
This letter gives no indication that the applicant is suffering from a
condition that was caused by a combat related wound or injury, or that his
enrollment in this program is the result of his receiving a wound or injury
received as a direct result of or that was caused by enemy action.

11.  During the processing of this case, a member of the Board staff
reviewed the Department of the Army (DA) Vietnam Casualty Roster.  This
search failed to reveal an entry on this document pertaining to the
applicant.

12.  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 in order to award a PH there must be evidence that a member was
wounded or injured as a result of enemy action.  The wound or injury for
which the PH is being awarded must have required treatment by a medical
officer and this treatment must be supported by medical treatment records
that were made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to the PH based on his
exposure to hazardous materials while serving on active duty was 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 direct result of, or was caused by enemy action.  There must
also be evidence confirming that the wound required treatment by military
medical personnel, and a record of this treatment must have been made a
matter of official record.

2.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was
never wounded in action, and the PH is not included in the list of awards
contained in Item 41, and the applicant last audited this record on 10 May
1968, during his separation processing.  In effect, his audit was his
verification that the information contained on the DA Form 20, to include
the Item 40 and 41 entries, were correct at that time.
3.  The PH is also not included in the list of awards contained on the
applicant's DD Form 214, which he authenticated with his signature on the
date of his discharge.  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.  His record
is also void of any orders or other documents that show he was ever
recommended for, or awarded the PH by proper authority while serving on
active duty.  Further, there are no medical treatment records on file that
show he was ever treated for a combat related wound or injury, and his name
is not included on the Vietnam Casualty Roster, the official DA list of RVN
battle casualties.

4.  Finally, the veracity of the applicant's claim of entitlement to the PH
and of the information contained in the VA letter provided by the applicant
is not in question. However, absent any evidence of record that
corroborates the applicant's claim that his current health conditions are
the result of a combat related wound he received in action in the RVN, or
that he was ever treated for wounds 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.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH now under consideration on 14 May
1968, the date of his discharge.  Therefore, the time for him to file a
request for correction of any error or injustice expired on 13 May 1971.
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

___JNS _  __DKH   _  __LMD__  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.




                                  _____John N. Slone______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070001605                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/07/17                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1968/05/14                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Hardship                                |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Mitrano                             |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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