RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  27 January 2004
	DOCKET NUMBER:  AR2003088880

	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	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Ms. Yolanda Maldonado		Member	
	Mr. Lester Echols		Member	

	The applicant and counsel if any, did not appear before the Board.

	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 that he be awarded the Purple Heart for wounds received from shrapnel on 26 June 1969.  

2.  The applicant states that he was medevaced and was never returned to his unit for the award of the Purple Heart.  His medical records were lost by the United States Navy (USN) while hospitalized in Florida.  He also states that an attempt to locate his record, over 20 years ago, shows proof that he wanted to set the record straight and be awarded the Purple Heart.  He has proof that he was wounded in the left eye and was evacuated.  His DD Form 214 failed to show that he was awarded the Purple Heart.  His medical records later surfaced at the Veterans Administration (VA) which provided proof to make his claim.  While serving in Vietnam, with the 4th Infantry Division, he received three wounds. One was a minor flesh wound to his hand and two wounds in the left eye area, which occurred on 26 June 1969.  He was seen by medics after the mortar attack.  At his unit, he was informed that his wounds were more serious that originally diagnosed.  He was also informed that he had enough evidence to warrant award of the Purple Heart.

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge), medical documentation, and a letter of explanation.

4.  In his letter of explanation, he states that the Board should find in the interest of justice to consider his award of the Purple Heart.  He realizes that many years have passed by since he was wounded.  His diagnosis of dementia (organic loss of intellectual function) was caused by a Central Nervous System Angiitis (inflammation of a vessel) or an autoimmune encephalitis (inflammation of the brain).  This cerebral infection affected his mind, memory, and mental abilities needed to organize this application.  Due to his affected neurological status, his brain has not functioned properly for years.  He was rated 100 percent disabled and is currently receiving Social Security benefits.  His VA doctor believes that his condition is linked to dementia.  He was admitted to a military hospital 5 years ago for severe dementia for mental problems that existed years ago.  

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of error which occurred on 1 April 1970, the date of his discharge.  The application submitted in this case is dated 27 March 2003. 

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 limitation 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 military records show he entered active duty on 30 June 1967, as a cook.  He served in Vietnam from 30 July 1968 to 29 July 1969.  He continued to serve until he was released from active duty on 1 April 1970.  He was transferred to the Army Reserve. 

4.  His DD Form 214 does not show the Purple Heart as an authorized award.  

5. His DA Form 20 (Enlisted Qualification Record) does not show an entry in item 40 (Wounds) and does not show the Purple Heart as an entry in item 41 (Awards and Decorations).  

6.  The applicant provided several copies of medical documentation that show he was treated for an eye infection while serving in Vietnam on 26 June 1969.  He was immediately evacuated to a military hospital and was diagnosed as having angiitis.

7.  The applicant's records contain a copy of his separation Standard Form 89 (Report of Medical History), dated 16 February 1970.  The applicant stated that he was in good health.  He also stated that he had a virus infection in both eyes, viral hepatitis, and massive skin disease while serving in Vietnam.  He was treated at a military hospital for all injuries and illnesses.  However, he failed to indicate that his illnesses were the result of hostile action or a shrapnel wound.

8.  The applicant provided the second page of his Standard Form 88 (Report of Medical Examination).  The doctor noted that the applicant stated he was injured above the left eye by shrapnel. 

9.  The applicant provided a copy of a letter from the Department of Veterans Affairs, dated 26 June 2002, that shows he was granted 100 percent for his service-connected illnesses.  There is no indication in the available records to show that his illnesses were the result of hostile action.

10.  There are no orders in the applicant’s service personnel records which show that he was awarded the Purple Heart.  There also is no evidence in his records that shows he was wounded or treated for wounds as a result of hostile action.

11.  The applicant’s name failed to appear on the Vietnam Casualty List for a wound received to his left eye in 1969 or for any other wound during his service in Vietnam as a result of enemy action.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The medical evidence provided by the applicant shows that he was diagnosed as having angiitis while serving in Vietnam.  He was treated and returned to duty. However, medical documentation failed to show that his eye injury was the result of hostile action or a shrapnel wound.

2.  There are no orders officially awarding the applicant the Purple Heart.  Therefore, based on the available evidence presented, there is insufficient basis to approve or show that he was awarded the Purple Heart. 

3.  The Board has considered the applicant's letter of explanation and has noted that he is 100 percent disabled; however, this evidence is not sufficient to warrant an award of the Purple Heart.

4.  Records show the applicant should have discovered the error or injustice now under consideration on 1 April 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 31 March 1973.  However, the applicant did not 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ao____  ___ym___  ___le__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not 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.  

		___Arthur A. Omartian___
		        CHAIRPERSON

INDEX

CASE ID	AR2003088880	
SUFFIX		
RECON		
DATE BOARDED	20040127	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19700401	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	61	
2.		
3.		
4.		
5.		
6.