RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            05 FEBRUARY 2004                  
	DOCKET NUMBER:   AR2003090821

	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. Fred N. Eichorn		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Karen A. Heinz		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 received shell fragment wounds “in Vietnam under combat conditions” and is currently receiving disability compensation for residuals of the wound.  He notes he never received the Purple Heart.

3.  He states that X-rays show a metallic foreign body in his neck, which he knew about.  He states, however, he did not know he could have his records corrected. 

4.  The applicant states he was actually wounded twice in Vietnam; once in December 1968 when he was wounded in the lower right leg and then again in January 1969 when he was hit by a fragment from a 122mm rocket.  He notes that neither wound was serious and so he received no treatment.

5.  The applicant provides a copy of his Department of Veterans Affairs rating document.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on 
25 October 1969.  The application submitted in this case is dated 2 May 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 the applicant entered active duty on 
8 November 1966.  He was trained as a heavy vehicle driver (64B).

4.  In November 1968 he was assigned as a heavy vehicle driver with the United States Army Depot in Long Binh, Vietnam.  In February 1969 he was reassigned for duty as a physical activities specialist (03C) with Headquarters and Headquarters Company, Long Binh Post.

5.  In October 1969 the applicant departed Vietnam and returned to the United States.  Prior to his departure he was awarded an Army Commendation Medal for meritorious service during the period October 1968 to October 1969.  There is no indication he was ever awarded the Purple Heart.

6.  On 25 October 1969 the applicant was released from active duty.  Neither his separation document, nor his Department of the Army Form 20 (Enlisted Qualification Record) reflects entitlement to the Purple Heart and item 40 (wounds) on his Department of the Army Form 20 is blank.  The applicant authenticated the information contained on his Department of the Army Form 20 in August 1969 and his separation report was signed on the day of his release from active duty.

7.  There were no medical records available to the Board, or provided by the applicant.  His name is not among a list of individuals reported as combat casualties during the Vietnam War.

8.  The applicant’s Department of Veterans Affairs rating decision, included with his application to this Board, is dated 13 December 2002.  The decision indicates the applicant was granted a 10 percent disability rating for “cervical spine condition.”  According to the rating document, the rating decision was made based on “a retained metallic foreign body” in the applicant’s neck muscles which was shown on a 1999 X-ray report, and based on the applicant’s own statement received by the Department of Veterans Affairs in September 2001.

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 the applicant would have been credited with participating in three designated campaign periods (Vietnam Counteroffensive Phase VI, TET 69 Counteroffensive, and Vietnam Summer-Fall 1969) during his period of service in Vietnam.  His campaign participation should be reflected by three bronze service stars on the Vietnam Service Medal, which is reflected on his separation document.  

11.  The pamphlet also notes that the applicant would have been entitled to a Meritorious Unit Commendation and the Republic of Vietnam Gallantry Cross Unit Citation with Palm.

DISCUSSION AND CONCLUSIONS:

1.  There is no medical evidence, and the applicant has not provided any, that he was wounded as a result of hostile action while in Vietnam.  The fact that he is receiving disability compensation from the Department of Veterans Affairs based on a 1999 X-ray showing a metallic fragment in the applicant’s neck, and his statement is not sufficient evidence to conclude that the applicant was in fact wounded as a result of hostile action.

2.  In the absence of more compelling evidence, there is no basis for 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 alleged error or injustice now under consideration on 25 October 1969; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
24 October 1972.  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.

5.  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

__FNE __  __JPI ___  __KAH__  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:

	a.  he is entitled to the Republic of Vietnam Gallantry Cross Unit Citation with Palm and a Meritorious Unit Commendation; and
	b.  he is entitled to three bronze service stars on his Vietnam Service Medal.

		____Fred N. Eichorn_______
		        CHAIRPERSON

INDEX

CASE ID	AR2003090821	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040205	
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.