RECORD OF PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            09 December 2003                  
	DOCKET NUMBER:   AR2003090816

	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. Jessie B. Strickland		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Ms. Eloise C. Prendergast		Member	
	Mr. Raymond J. Wagner		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 states that he was wounded and was never awarded a Purple Heart.

3.  The applicant provides a photocopy of a sheet from a medical record.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on 16 April 1976.  The application submitted in this case is dated 25 April 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.  He enlisted on 5 June 1964, completed his basic combat training at Fort Gordon, Georgia, his advanced individual training at Fort Leonard Wood, Missouri, and his airborne training at Fort Benning, Georgia, before being assigned to the 326th Engineer Battalion at Fort Campbell, Kentucky for duty as a Pioneer.  He was transferred to Vietnam with his unit on 8 July 1965.

4.  He completed his tour in Vietnam on 14 July 1966 and was transferred to Fort Bragg, North Carolina, where he remained until he returned to the 326th Engineer Battalion in Vietnam on 5 September 1967.  He remained in Vietnam until 4 September 1968, when he was transferred back to Fort Bragg.  He was promoted to the pay grade of E-6 on 19 December 1969 and was transferred back to Vietnam on 1 September 1969, where he served until 30 August 1970.

5.  He remained on active duty through a series of continuous reenlistments and served a variety of assignments in the United States and Korea before being honorably discharged on 16 April 1976, under the provisions of Army Regulation 635-200, chapter 4, and the Qualitative Management Program.  He had served 11 years, 10 months and 14 days of total active service.

6.  A review of the available records fails to show that the applicant was ever wounded or that he was awarded the Purple Heart.  Additionally, a review of the Vietnam Casualty Listing failed to reveal his name being listed as a casualty.

7.  A review of the document submitted by the applicant provides no indication of who the document pertains to and indicates on 3 December 1967 the patient was treated at the brigade aid station.  The patient was wounded by mortar fire in chest and head and was evacuated to the 2nd Surgical Hospital.  This document though partially legible does not provide any identification of the soldier/patient being treated.  

8.  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 a result of hostile action, that the wound must have required treatment by a medical officer, and that the medical treatment was made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The Board has noted the applicant's contention that he was wounded in Vietnam and should have been awarded the Purple Heart; however, the evidence of record does not support his contention and the evidence submitted by the applicant is not sufficient to substantiate his claim that he was the person being treated.  

2.  Therefore, absent evidence of a more credible nature showing that the applicant is identified as the wounded/treated party, the Board finds no basis to award him the Purple Heart at this time.

3.  Records show the applicant should have discovered the error or injustice now under consideration on 16 April 1976; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 16 April 1979.  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

mdm_____  ecp_____  rjw_____  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.  

		____Mark D. Manning____
		        CHAIRPERSON

INDEX

CASE ID	AR2003090816	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031209	
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.    107.0015	61/PH	
2.		
3.		
4.		
5.		
6.