RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  19 February 2004
	DOCKET NUMBER:  AR2003090823

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Robert Duecaster		Member	
	Mr. Melvin H. Meyer		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 his records be corrected to show award of the Purple Heart.

2.  The applicant states that he was injured in Vietnam when he was run over by an armored personnel carrier.

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of error, which occurred on 12 February 1971, the date of his separation from active duty.  The application submitted in this case is dated 28 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.  The applicant was inducted and entered active duty on 9 July 1969.  He was trained as an infantryman and later assigned to Vietnam.  He served in Vietnam from 5 July to 27 November 1970 as an infantry team leader with Company A, 1/61st Infantry, 5th Infantry Division.

4.  Effective 12 February 1971, the applicant was separated from active duty in pay grade E-5 and transferred to the Army Reserve with 1 year, 7 months, and 4 days creditable active duty and 8 days lost time.  The authorized awards shown on his DD Form 214 were the Combat Infantryman Badge, the Vietnam Service Medal, and the National Defense Service Medal.

5.  A review of available records did not reveal an order for the applicant for the Purple Heart and his name did not appear on the Vietnam Casualty List.  The available records contain a casualty report on the applicant dated 16 November 1970 prepared by the battalion adjutant.  It states that the applicant suffered a possible fracture of the right ankle and possible pelvis damage.  The injury occurred when the applicant was on guard duty in front of a track (armored personnel carrier) when he was hit by the track.  The final statement made was that there was no enemy action involved.

6.  Army Regulation 672-5-1(Military Awards), in effect at the time, provides, in pertinent part, that the Purple Heart is awarded for a wound or injury 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, and the medical treatment must have been made a matter of official record.

7.  Army Regulation 672-5-1 also provided, in pertinent part, for award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal.

8.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards and campaign credit received by units serving in Vietnam.  This document shows the unit to which the applicant was assigned participated in two campaigns during his period of assignment and was cited for award of the Vietnam Gallantry Cross with Palm Unit Citation by Department of the Army General Orders Number 8, dated 1974.  It also shows that the unit was awarded the Republic of Vietnam Civil Actions Honor Medal by Department of the Army General Orders Number 24, dated 1972.

DISCUSSION AND CONCLUSIONS:

1.  The available records show that the applicant did not meet the regulatory requirement for award of the Purple Heart and the information he provides does not provide a basis for the award now.

2.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 12 February 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 11 February 1974.  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 Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 3 of the BOARD DETERMINATION/RECOMMENDATION section below. 

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__rw___  ___rd___  ___mm____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would 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.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned. 

3.  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 award of two bronze service stars for the Vietnam Service Medal, the Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal.

		__Raymond J. Wagner____
		        CHAIRPERSON

INDEX

CASE ID	AR2003090823	
SUFFIX		
RECON		
DATE BOARDED	20040219	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	107.00	
2.		
3.		
4.		
5.		
6.