RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  19 February 2004
	DOCKET NUMBER:  AR2003090969

	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 provides no details on how, when , or where he was wounded.

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 16 July 1971, the date of his separation from active duty.  The application submitted in this case is dated 1 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.  The applicant enlisted and entered active duty on 27 June 1968.  He completed training as a combat engineer and was assigned to Vietnam.  His available records show that he was assigned to the 168th Combat Engineer Battalion from 26 November 1968 through 22 November 1969 and the 919th Engineer Company from 23 November 1969 through 17 June 1970.

4.  Effective 16 July 1971, the applicant was separated from active duty in pay grade E-4 and transferred to the Army Reserve with 2 years, 11 months, and 24 days creditable active duty and 22 days lost time.  The authorized awards shown on his DD Form 214 include the Vietnam Service Medal with four bronze service stars.  The Purple Heart is not listed as an authorized award.

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.  There are no medical records available for review.

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 authorized 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.  A silver service star is worn in lieu of five bronze service stars.

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 units to which the applicant was assigned participated in five campaigns during his period of assignment and was cited for award of the Valorous Unit Award by Department of the Army General Orders 43, dated 1972, the Meritorious Unit Commendation by Department of the Army General Orders 51, dated 1971, the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Department of the Army General Orders Number 50, dated 1971, and the Republic of Vietnam Civil Actions Honor Medal by Department of the Army General Orders Number 43, dated 1970.

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 16 July 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 15 July 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, the Case Management Support Division (CMSD), St. Louis, Missouri, will accomplish administrative correction of the applicant's records 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 for award of the Purple Heart.

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 one silver service star for the Vietnam Service Medal, the Valorous Unit Award, the Meritorious Unit Commendation, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal.

		__Robert J. Wagner____
		        CHAIRPERSON

INDEX

CASE ID	AR2003090969	
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.