RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            27 APRIL 2004                  
	DOCKET NUMBER:   AR2003096681

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Fred Eichorn		Chairperson	
	Mr. Patrick H. McGann, Jr.		Member	
	Ms. Marla J. N. Troup		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 his DD Form 214 (Report of Transfer or Discharge) be corrected to show award of the Purple Heart.

2.  The applicant states that the award was omitted from his DD Form 214.

3.  The applicant provides a statement from his former platoon leader, who commented on the applicant's performance while under his command.   

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 19 January 1970.  The application submitted in this case is dated 15 August 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 enlisted in the Army for three years on 20 January 1967, completed training as an infantryman, and in June 1967 was assigned to Fort Benning, Georgia for training at the Officer Candidate School (OCS).  The applicant's DA Form 20 (Enlisted Qualification Record) shows that he was relieved from the infantry OCS for personal reasons on 25 August 1967.  In November 1967 the applicant was assigned to Company E, 1st Battalion,       14th Infantry of the 4th Infantry Division in Vietnam.  The applicant attained the rank of sergeant and was awarded the Army Commendation Medal for meritorious service for the period November 1967 to November 1968.  He returned to the United States and in January 1969 was assigned to Fort Jackson, South Carolina.  The applicant participated in five campaigns during his tour in Vietnam, and the 1st Battalion, 14th Infantry was awarded the Republic of Vietnam Gallantry Cross Unit Citation with Palm and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for its actions while the applicant was assigned to that organization.     

4.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, on three occasions while at Fort Jackson.  On 19 January 1970 the applicant was released from active duty in the rank of sergeant with an honorable characterization of service.  He had three years of service.  His records do not contain an order showing award of the Purple Heart, nor any evidence that he was wounded in action.  His DA Form 20 fails to show that he was wounded in action.

5.  The Vietnam Casualty Roster maintained by this agency does not show that the applicant was wounded in action.

6.  Army Regulation 600-8-22 provides 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.

7.  Service (campaign) medals and service ribbons denote honorable performance of military duty within specified limited dates in specified geographical areas.  Army Regulation 600-8-22, paragraph 6-7 provides for service stars for wear on campaign and service ribbons to denote an additional award, and states that service stars are authorized for wear on the Vietnam Service Medal.  A silver service star is worn instead of five bronze service stars.

8.  The Republic of Vietnam Campaign Medal is awarded to members of the Armed Forces who have served in Vietnam for six months, or to those members who have served less than six months and who have been wounded by hostile forces.  

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence and the applicant has not submitted any to indicate that he was wounded in action.  Consequently, there is no basis to grant his request to correct his record to show award of the Purple Heart.  

2.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 19 January 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on          18 January 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 timely file in this case.

4.  Evidence shows that the applicant’s records contain administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant's records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 3 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__FE____  __PHM__  _MJNT__  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.

3.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show award of the Vietnam Service Medal with one silver service star, the Republic of Vietnam Campaign Medal, the Republic of Vietnam Gallantry Cross Unit Citation with Palm and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.  

		
		_____Fred Eichorn________
		        CHAIRPERSON

INDEX

CASE ID	AR2003096681	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040427	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	107.00	
2.		
3.		
4.		
5.		
6.