RECORD OF PROCEEDINGS

	IN THE CASE OF:    

	BOARD DATE:          18 November 2003                    
	DOCKET NUMBER:  AR2003088414

	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. Richard P. Nelson		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Barbara J. Ellis		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 that he was injured while serving in Vietnam and did not receive the Purple Heart.  He states that the injury was a result of a shrapnel wound to the right leg, incurred during an attack on 8 March 1968.

3.  The applicant provides copies of: Standard Form 600 (Chronological Record of Medical Care), showing treatments for “severe laceration” of his right leg during the period 9 through 18 March 1968; a photograph showing an individual lying on what appears to be a cot, with a bandaged right leg; an Agent Orange Evaluation, dated 3 December 1999; and a 4-page Department of Veterans Affairs Rating Decision, dated 8 August 2000.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error that occurred on 8 March 1968.  The application submitted in this case is dated 11 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  The ABCMR has elected to conduct a substantive review of this 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 military records show that he enlisted in the Army on 12 January 1966.  He underwent basic combat and advanced individual training in Military Occupational Specialty (MOS) 62B20 (Wheeled Vehicle Mechanic).  The applicant served at Fort Hood, Texas prior to deploying to Vietnam, where he served from 11 April 1967 to 19 November 1967, with Company A, 589th Engineer Battalion and from 20 November 1967 to 4 April 1968 with Company D, 815th Engineer Battalion.  He was then assigned to Fort Bragg, North Carolina, until his separation from the Army on 11 January 1969 in pay grade E-4.

4.  The applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), signed in his own hand, shows that he is entitled to the following decorations: the Vietnam Service Medal; the National Defense Service Medal; and the Vietnam Campaign Medal.

5.  The applicant’s name is not listed on the Vietnam Casualty Roster.

6.  There are no entries in item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) that show the applicant was wounded as a result of hostile action.

7.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded to any member of an Armed Force who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, has been wounded or killed 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.

8.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided, in pertinent part, for award of the Purple Heart.  The regulation stated that authority to award the Purple Heart was delegated to hospital commanders.  Further, it directed that all personnel treated and released within 24 hours will be awarded the Purple Heart by the organization to which the individual is assigned. Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam will be awarded the Purple Heart directly by the hospital commander rendering treatment.

9.  The applicant’s records do not reflect entitlement to any unit awards.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units that served in the Vietnam War.  This document shows that each of the units, to which the applicant was assigned, was cited for award of the Meritorious Unit Commendation.  The first unit, Company A, 589th Engineer Battalion, was awarded the Meritorious Unit Commendation for the period 29 April 1967 to 31 December 1967 by Department of the Army General Orders Number 43, dated 1968.  The second unit, Company D, 815th Engineer Battalion was awarded the Meritorious Unit Commendation for the period 27 March 1967 to 27 March 1968 by Department of the Army General Orders Number 43, dated 1969.

10.  Department of the Army General Order Number 8, dated 1974, awarded all personnel assigned to the United States Army Vietnam from 8 February 1962 through 28 March 1973 the Republic of Vietnam Gallantry Cross Unit Citation with Palm.

11.  Headquarters, 548th Engineer Battalion (Construction), Fort Bragg, Special Orders Number 43, dated 16 August 1968, announced award of the Expert Marksmanship Badge with Rifle Bar to the applicant.

DISCUSSION AND CONCLUSIONS:

1.  There is medical evidence showing that the applicant was treated for a wound to the right leg while in Vietnam.  However, the records do not show the wound was incurred as a result of hostile action.

2.  There are no orders in the available records that show the applicant was awarded the Purple Heart and the applicant has not provided a copy of orders awarding him the Purple Heart.

3.  The “INJURIES/ACCIDENTS” portion of the applicant’s Agent Orange Evaluation mentions a shrapnel wound incurred in 1967.  It does not indicate that the wound was a result of hostile action.

4.  Paragraph 2 of the applicant’s Veterans Affairs Rating Decision indicates, “records show that the veteran fell and sustained a severe laceration to anterior right shin on 03-09-68.”  It does not indicate that the wound was a result of hostile action.

5.  Records show that the applicant authenticated his DD Form 214, covering his service in Vietnam, on 11 January 1969.  That DD Form 214 did not show award of the Purple Heart.  There is no evidence that the applicant attempted to properly obtain award of the Purple Heart after his return from Vietnam.  He should have filed an application with the ABCMR not later than 3 years from the date he authenticated his DD Form 214.  However, he did not do so and has provided no explanation for his failure to file.  Therefore the applicant has failed to explain or satisfactorily demonstrate by evidence that it would be in the interest of justice to excuse his failure to apply within the 3-year statute of limitations.

6.  Evidence shows that the applicant’s records contain administrative error that 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

___mdm_  ___jns___  ___bje___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented is insufficient to warrant award of the Purple Heart or to excuse the applicant’s failure to file an application with the ABCMR within its 3-year statute of limitations.  Therefore, the Board does not excuse the applicant’s failure to timely file within the time prescribed by law and his application is denied for that reason.

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:

a. two awards of the Meritorious Unit Commendation;

b. award of the Republic of Vietnam Gallantry Cross Unit Citation with Palm; and

c. award of the Expert Marksmanship Badge with Rifle Bar.

		_________John N, Slone_____________
		        CHAIRPERSON

INDEX

CASE ID	AR2003088414	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031118	
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.		
2.		
3.		
4.		
5.		
6.