RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  16 December 2003 
	DOCKET NUMBER:  AR2003087883

	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. Samuel A. Crumpler		Chairperson	
	Ms. Shirley Powell		Member	
	Mr. John N. Slone		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.   

2.  The applicant stated that he was involved in a mortar and rocket attack that was attempting to destroy their ammunition dump in Hue, Vietnam in 1970.  As a result, he received a shrapnel wound to his mouth and lips and injured his teeth.

3.  The applicant provides a copy of his Veterans Affairs (VA) Rating Decision, a letter from his former dentist, his DD Form 214 (Report of Transfer or Discharge), and his Standard Form 88 (Report of Medical Examination). 

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of error which occurred on 15 May 1970, the date of his discharge.  The application submitted in this case is dated 5 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 (AD) on 28 August 1969, as a heavy vehicle driver (64B).  He served in Vietnam from 16 February to 15 May 1970 when he was released from AD and was transferred to the Army Reserve. 

4.  The applicant’s DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, and the Marksmanship Qualification Badge (M-14 and M-16).  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.  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.

7.  The applicant underwent a separation medical examination on 15 May 1970 and was found qualified for separation.

8.  The applicant provided a copy of an extract of his dental records which stated that he sustained a blow to the face while serving in Vietnam.  It also stated that he had a large laceration to his lip and was treated.  

9.  The applicant provided a copy of a letter from his former dentist, dated 21 July 1994.  He states that the applicant was seen during his residency in periodontics at the VA Medical Center in Memphis, Tennessee.  His chief complaint was swelling in the anterior part of his maxilla (the irregularly shape bone that with its fellow forms the upper jaw; it assists in the formation of the orbit, the nasal cavity, and the palate, and lodges the upper teeth).  His past history revealed trauma to injured area during combat.  An examination was performed which revealed a partial denture in the anterior maxilla and scarring of soft tissue.  He concluded that the applicant's dental problems were a result of trauma during combat.  

10.  The applicant provided a copy of his VA Rating Decision, dated 1 November 1994, which shows that he was granted 20 percent for a service-connected disability for mouth injury, mid lower lip.  His compensation was later decreased to 10 percent based on improvement in his service-connected scar of the mid-lower lip.   There is no indication in the available records to show that his mouth injury was the result of hostile action.

11.  The applicant’s medical records are unavailable for review by this Board.

12.  The applicant’s name failed to appear on the Vietnam Casualty List for a wound received in 1970 during his service in Vietnam as a result of enemy action.

13.  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.

14.  The regulation also provides that one bronze service star is authorized for wear on the Vietnam Service Medal for participation in each named campaign.  A review of the regulation and the applicant's records shows that he is entitled to two bronze service stars.

15.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the applicant is entitled to award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 8, dated 1974.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that he sustained a mouth injury while serving in Vietnam.  He was awarded 20 percent for his service-connected injury that was later decreased to 10 percent.  However, this evidence failed to indicate that his mouth injury was the result of hostile action.  

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.  Records show the applicant should have discovered the error or injustice now under consideration on 15 May 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 14 May 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.

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 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__sc____  __sp____  __js____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  

2.  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 the Vietnam Service Medal with two bronze service stars and Republic of Vietnam Gallantry Cross with Palm Unit Citation.  

		__Samuel A. Crumpler______
		        CHAIRPERSON

INDEX

CASE ID	AR2003087883	
SUFFIX		
RECON		
DATE BOARDED	20031216	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19700515	
DISCHARGE AUTHORITY	AR  635-200	
DISCHARGE REASON		
BOARD DECISION	Deny/GRANT 	
REVIEW AUTHORITY		
ISSUES         1.	61	
2.		
3.		
4.		
5.		
6.