RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 August 2007
      DOCKET NUMBER:  AR20070002793


      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             |
|     |Ms. Lisa O. Guion                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Ms. Ernestine I. Fields           |     |Member               |
|     |Mr. Randolph J. Flemings          |     |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, the Purple Heart (PH) award.

2.  The applicant states, in effect, that he was treated as an outpatient
for a broken leg, at the United States Army Hospital in Nha Trang, Republic
of Vietnam (RVN).  He indicates that his convoy was ambushed and that he
was thrown out of a jeep as it started to turn over.  He also claims that
he landed on his left leg and broke his left femur.

3.  The applicant provides a Veterans Application for Compensation or
Pension at Separation from Service (VA Form 21-256e) and his 31 August 1978
separation document (DD Form 214) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 31 August 1978.  The application submitted in this case is
dated 8 February 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 military record show he served in an enlisted status in
the Army Reserve from 17 March 1944 through 29 November 1945, at which time
he was honorably discharged for the purpose of accepting a commission.  On
30 November 1945, he was appointed a second lieutenant (2LT) in the Army of
the United States and entered active duty in that status.  On 7 May 1946,
he was honorably separated from active duty after completing 5 months and 8
days of active military service.

4.  On 2 June 1950, the applicant was appointed a 2LT in the Regular Army
and entered active duty in that status.  His Personnel Qualification Record
(DA Form 2-1) shows he served in military occupational specialty 70A
(Logistics Management Officer).
5.  The applicant's DA Form 2-1 also shows he completed a total five
overseas service tours in the following locations:  Hawaii; Thailand; RVN;
and 2 tours in Germany.  The PH is not included among the list of awards
shown in Item 9 (Awards, Decorations, and Campaigns) of this record and the
applicant last reviewed this record on 24 January 1977.

6.  The applicant's Military Personnel Records Jacket (MPRJ) contains no
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
is also void of any medical treatment records indicating he was ever
treated for a combat related wound.

7.  On 31 August 1978, the applicant was honorably released from active
duty (REFRAD), in the rank of colonel (COL), for the purpose of retirement.
 The DD Form 214 he was issued at the time shows, in Item 26 (Decorations,
Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or
Authorized), that he earned the following awards during his active duty
tenure:  American Campaign Medal; World War II Victory Medal; Army Good
Conduct Medal; Korean Service Medal with 1 bronze service star; United
Nations Service Medal; Republic of Korea Presidential Unit Citation;
National Defense Service Medal 1st Oak leaf Cluster; Army of Occupation
Medal with Japan Clasp; Army Commendation Medal with 2nd Oak Leaf Cluster
(3rd Award); Air Force Commendation Medal with 2nd Oak Leaf Cluster (3rd
Award); Vietnam Service Medal with 3 bronze service stars; RVN Campaign
Medal with Device 1960; RVN Gallantry Cross with Palm Unit Citation; Joint
Services Commendation Medal; Bronze Star Medal; Air Medal with Numeral 23;
Meritorious Service Medal; Armed Forces Honor Medal with 1st Oak Leaf
Cluster (sic); Vietnam Technician Service Medal 1st Class (sic); Vietnam
Engineer Corps Badge (sic); General Staff Identification Badge; German
Marksman Award; Legion of Merit with 2nd Oak Leaf Cluster (3rd Award); and
5 Overseas Service Bars.  The PH was not included in the list of awards in
Item 26 and the applicant authenticated this document with his signature in
Item 29 (Signature of Person Being Separated) on the date of his
separation.

8.  The applicant provides a VA Form 21-526e completed by the applicant, in
which he lists eleven different medical conditions and or injuries that he
suffered throughout his military service in Item 6 (Nature of Sickness,
Diseases or Injuries for Which Claim is Made and Date Each Began).  This
list includes the entry “broken leg, 1969.”

9.  During the processing of this case, a member of the Board’s staff
reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The
applicant's name is not included on this casualty list.

10.  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.  In order to support awarding a member the PH, it is necessary
to establish that the wound, for which the award is being made, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH and the supporting
documents he provided were carefully considered.  However, by regulation,
in order to support award of 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.

2.  The applicant's MPRJ is void of any orders, or documents that show he
was ever recommended for, or awarded the PH by proper authority, and of any
medical treatment records showing he was ever treated for a combat related
wound or injury while service on active duty.

3.  Further, the PH is not included in the list of awards contained in Item
9 of the applicant's DA Form 2-1, which he last reviewed on 24 January
1977.  In effect, his review was his verification that the information
contained on the record was correct at that time.

4.  In addition, the PH is not included in the list of awards contained on
the applicant's final DD Form 214, which he authenticated with his
signature on the date of his separation, 31 August 1978.  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
the DD Form 214 was prepared and issued.  Further, his name is not included
on the Vietnam Casualty Roster, the official DA list of RVN casualties.

5.  The VA Form 21-526e submitted by the applicant was also carefully
evaluated.  However, this document, while listing those medical conditions
and injuries that the applicant sustained throughout him military service,
it does not detail the circumstances under which they were incurred.  As a
result, this document fails to confirm any of the conditions, specifically
his broken leg, were received as a result of enemy action.

6.  The sincerity of the applicant's claim that his leg was broken when his
jeep was turned over during an ambush is not in question.  However, absent
any evidence of record confirming the injury was sustained as a result of
enemy action, or that he was ever treated by military medical personnel for
a combat related wound or injury while serving in the RVN, the regulatory
burden of proof necessary to support award of the PH has not been satisfied
in this case.

7.  Records show the applicant should have discovered the alleged error or
injustice related to award of the PH now under consideration on 31 August
1978, the date of his separation.  Therefore, the time for him to file a
request for correction of any error or injustice expired on 30 August 1982.
 However, 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

___LDS _  __EIF ___  __RJF___  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.




                                  _____Linda D. Simmons____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20070002793                           |
|SUFFIX                  |                                        |
|RECON                   |NO                                      |
|DATE BOARDED            |2007/08/07                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1978/08/31                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |107.0015                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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