RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            13 NOVEMBER 2003                  
	DOCKET NUMBER:   AR2003088076

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Ronald E. Blakely		Member	
	Ms. Eloise C. Prendergast		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 award of the Purple Heart.

2.  The applicant states he was in a convalescent center in Vietnam between May and June 1970 and although he received an award of the Army Commendation Medal, he should have received a Purple Heart.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on 
28 January 1972.  The application submitted in this case is dated 2 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.  Records available to the Board indicate that the applicant entered active duty on 27 December 1968 and served in Vietnam as a crane shovel operator between October 1969 and October 1970.  While in Vietnam he was assigned to the 870th Transportation Company.

4.  He was awarded an Army Commendation Medal for meritorious achievement during the period May through June 1970.

5.  Following the applicant’s tour of duty in Vietnam, he was reassigned to an engineer company in Germany where he remained until he returned to the United States for separation processing.

6.  On 28 January 1972 the applicant was released from active duty with an honorable characterization of service.  Neither his Department of Defense Form 214 (Armed Forces of the United States Report of Transfer or Discharge), nor his Department of the Army Form 20 (Enlisted Qualification Record) reflect entitlement to the Purple Heart and item 40 (wounds) on his Department of the Army Form 20 is blank.  The applicant last authenticated the information on his Department of the Army Form 20 on 19 February 1971 and the information on his separation document was authenticated on the date of his separation.

7.  There were no medical records available to the Board, or provided by the applicant.  However, his separation physical examination, conducted on 
14 January 1972, notes that the applicant was treated for dizziness and headaches while in Vietnam which were attributed to heatstroke.

8.  The applicant’s name is not among a list of individuals reported as combat casualties during the Vietnam War.

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for wounds 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 by a medical officer, and the medical treatment must have been made a matter of official record.

10.  A review of Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) notes that the applicant’s unit (870th Transportation Company) participated in five designated campaigns (Vietnam Summer-Fall 1969, Vietnam Winter-Spring 1970, Sanctuary Counteroffensive, Vietnam Counteroffensive Phase VII, and Consolidation I) while the applicant was a member of the organization.  As such, his campaign participation should be reflected as a silver service star (denoting participation in five designated campaign periods) on the Vietnam Service Medal recorded on his separation document.  The silver service star was omitted from his separation document.

11.  That same pamphlet notes that Department of the Army General Orders 8 announced award of the Republic of Vietnam Gallantry Cross Unit Citation with Palm to Headquarters, Untied States Military Assistance Company and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters, United States Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973.  This in effect, essentially ensured that all individuals who served in Vietnam would be entitled to the award.  The unit award was omitted from his separation document.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence, and the applicant has not provided any, that he was wounded as a result of hostile action while in Vietnam.  In the absence of such evidence, there is no basis for an award of the Purple Heart.

2.  Records show the applicant should have discovered the error or injustice now under consideration on 28 January 1972; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 28 January 1975.  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.
3.  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 Army Review Boards Agency (ARBA) Support Division, 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

__AAO __  __REB__  __ECP __  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 ARBA Support Division-St. Louis administratively correct the records of the individual concerned to show entitlement to a silver service star on his Vietnam Service Medal and entitlement to the Republic of Vietnam Gallantry Cross Unit Citation with Palm.

		___Arthur A. Omartian____
		        CHAIRPERSON

INDEX

CASE ID	AR2003088076	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031113	
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.