RECORD OF PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           22 JANUARY 2004                   
	DOCKET NUMBER:   AR2003090819

	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:

	Ms. Joann H. Langston		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Ronald J. Weaver		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 never received the Purple Heart.

3.  The applicant provides a statement from an individual who indicated he treated the applicant for a shrapnel wound to his left knee in January 1969.  

4.  The applicant also submits a statement from another individual who states he remembers the applicant being wounded in a fire fight.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on 
30 August 1970.  The application submitted in this case is dated 13 October 2002.  

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’s military personnel records were not available to the Board.  Information contained herein was reconstructed from information contained in the statements provided by the applicant in support of his request and a copy of his separation document.

4.  The applicant served on active duty between 8 September 1967 and 
30 August 1970.  

5.  His separation document indicates that he served as an infantryman in Vietnam between 9 April 1968 and 11 May 1969.  

6.  One of the statements, submitted by the applicant in support of his request was authored in September 2002.  

7.  The author of the statement indicated that he was assigned as the medic with the applicant’s unit and that during a fire fight in January 1969 he “began treating 

the wounded which was extremely difficult under heavy fire conditions” and that the applicant “was hit with shrapnel in the left knee and was one of the many men I treated that day.”  

8.  The second statement submitted by the applicant in support of his request is undated.  However, that individual stated that he remembers that “in January 1969 that [the applicant] was wounded in a fierce fire fight during an operation near Tay Ninh….”

9.  There were no medical records available to the Board and the applicant provided none.  

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

11.  Army Regulation 600-8-22 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.

DISCUSSION AND CONCLUSIONS:

1.  There is no medical evidence, nor has the applicant provided any, which confirms that he was wounded as a result of hostile action while in Vietnam.

2.  Although the statements submitted in support of the applicant’s request do support the applicant’s petition for an award of the Purple Heart in the absence of more compelling medical evidence to support those statements, there is insufficient evidence on which to base an award of the Purple Heart.

3.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

4.  Records show the applicant should have discovered the error or injustice now under consideration on 30 August 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 29 August 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.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JHL  __  __AAO__  __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.  

		____See Attached _____
		        CHAIRPERSON

INDEX

CASE ID	AR2003090819	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030122	
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.