RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         4 April 2006
      DOCKET NUMBER:  AR20050011208


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jose A. Martinez              |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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, that he was wounded in the Republic of
Vietnam (RVN) in July 1972, but never received the PH.

3.  The applicant provides his Separation Document (DD Form 214) and two
pages of his Enlisted Qualification Record (DA Form 20) in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 2 March 1979, the date of his final separation.  The
application submitted in this case is dated 19 July 2005.

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 he enlisted in the Regular Army and
entered active duty on 31 March 1971.  He was trained in and awarded
military occupational specialty (MOS) 35L Avionic Communication Equipment
Repairer), and the highest rank he attained while serving on active duty
was specialist five (SP5).

4.  The applicant's Personnel Qualification Record (DA Form 2-1) shows he
served in the RVN from 6 January through 26 June 1972, and that he was
medically evacuated to Fort Benning, Georgia in July 1972.  His record is
void of any indication that he was wounded in action, or that his
hospitalization was due to a combat related wound or injury.  Item 9
(Awards, Decorations & Campaigns) shows that he earned the following awards
during his active duty tenure:  National Defense Service Medal (NDSM);
Vietnam Service Medal (VSM); RVN Campaign Medal (RVNCM); RVN Gallantry
Cross (RVNGC) with Palm Unit Citation; and 1 Overseas Bar.

5.  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.  It also contains no medical treatment records that show he
was ever treated for a combat related wound or injury.

6.  On 4 March 1973, the applicant was honorably discharged for the purpose
of immediate reenlistment.  The DD Form 214 he was issued at this time does
not include the PH in the awards listed that he earned during this period.
The applicant authenticated this document with his signature on the date of
his separation.

7.  On 5 March 1973, the applicant reenlisted for six years.  He continued
to serve on active duty until 2 March 1979, at which time he was honorably
discharged at the expiration of his term of service.  The DD Form 214 he
was issued at the time shows he completed a total of 7 years, 11 months and
2 days of active military service.  It also shows he earned the following
awards during his active duty tenure:  NDSM; VSM; RVNCM; RVNGC with Palm
Unit Citation; Sharpshooter Qualification Badge with Rifle Bar; and 1
Overseas Bar.

8.  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, the wound required treatment by a
medical officer, and a record of this treatment must have been made a
matter of official record.

2.  The fact that the applicant was medically evacuated from the RVN
confirms only that he suffered from a condition that required his departure
from the command.  His indication that he is now 100 percent disabled is an
indication that he suffers from a service connected medical condition.
However, there are no medical treatment records on file that indicate the
medical condition that resulted in his medical evacuation from the RVN was
the result of a wound he received as a direct result of, or that was caused
by enemy action, or that his current disability is the result of a combat
related wound or injury.  The fact his hospitalization in the RVN and
medical evacuation is well documented and is an indication that the chain
of command determined his medical condition did not meet the criteria for,
or warrant award of the PH.

3.  The applicant’s official military personnel record contains no
indication that he was ever wounded in action, or that he was treated for a
combat related wound.  The PH is not included in the list of authorized
awards contained in Item 9 of his DA Form 2-1.  The applicant last reviewed
this record on 17 December 1978, more than six years after he completed his
service in the RVN.  This review, in effect, was his verification that the
information contained on the DA Form 2-1, to include Item 9, was correct on
that date.

4.  The PH is also not included in the list of awards contained on his
final 2 March 1979 DD Form 214, which he authenticated with his signature
on the date of his separation.  His signature on this document, in effect,
was his verification that the information contained on the DD Form 214, to
include the list of awards, was correct at the time the separation document
was prepared and issued.  Finally, his name is not on the Vietnam casualty
Roster, the official DA list of RVN battle casualties.

5.  The veracity of the applicant's claim of entitlement to the PH is not
in question. However, absent any evidence of record confirming his medical
condition was the result of a wound/injury he received as a direct result
of, or that was caused by 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 related to award of the PH now under consideration on 2 March
1979, the date of his final separation.  Therefore, the time for him file a
request for correction of any error or injustice expired on 1 March 1982.
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

___JEA     __JAM __  __JRM __  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.




                                  _____James E. Anderholm____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050011208                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/04/04                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1979/03/02                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  61   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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