RECORD OF PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            05 FEBRUARY 2004                  
	DOCKET NUMBER:   AR2003091067

	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. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Karen P. 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 the award of a second Purple Heart for wounds he received on 26 February 1969.

2.  The applicant states that on 26 February 1969, while serving in Vietnam, he was slightly wounded in his right leg.  That while on patrol a booby trap was triggered by a soldier behind him, severely wounding two other soldiers and causing a slight wound to himself.  He was examined by their medic, and sent to an aide station at LZ (landing zone) Tracy, where he received stitches to his leg.  

3.  The applicant provides a self-authored statement recounting the events surrounding his injury, a statement from a medic verifying his claim, and a copy of the Daily Staff Journal for the 1st Battalion, 8th Cavalry, on 26 February 1969.  

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on 30 May 1969.  The application submitted in this case is dated 17 March 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 to the Army of the United States on 14 August 1967 for a period of 2 years.  He completed basic combat training at Fort Jackson, South Carolina, and advanced individual training at Fort Ord, California. 

4.  He served in Vietnam from October 1968 to May 1969, with Company D, 
1st Battalion, 8th Cavalry, 1st Cavalry Division.

5.  The applicant was wounded in action on 27 November 1968, while serving in Vietnam, and was awarded the Purple Heart.

6.  A statement provided from a medic who states he was present on patrol when the booby trap was tripped and exploded, seriously wounding the second platoon sergeant and a new medic, and resulted in a minor wound to the right leg of the 

applicant.  He remembers examining the applicant, cleaning his wound and sending him to an aid station for treatment.  He was advised that the applicant never received a Purple Heart for this wound, and feels that possibly in the press of attending to others, he forgot to write up a tag on the applicant’s wound. 

7.  A 26 February 1969, Daily Staff Journal submitted by the applicant for  Company D, 1st Battalion, 8th Calvary, indicates that Company D, reported hitting a booby trap, which injured 3 men who were evacuated, by an Apache aircraft, and a fourth individual who had a minor arm wound who was sent to LZ Tracy.  

8.  On 6 April 1969, the applicant requested an early release from active duty to attend school.  On 24 April 1969, his request was approved. 

9.  On 30 May 1969, the applicant was released from active under the provisions of Army Regulation 635-200, chapter 5, for early release of overseas returnees.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates he had 1 year, 9 months and 17 days of creditable service.

10.  A review of the Vietnam Casualty Roster confirms the applicant’s wound in November 1968, however, there is no indication of a second wound in February 1969.  

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.

12.  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 V and VI, and TET 69 Counteroffensive) 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.  The pamphlet also notes that the applicant’s unit was awarded two Republic of Vietnam Gallantry Cross Unit Citations with Palm and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.

DISCUSSION AND CONCLUSIONS:

1.  Evidence shows the applicant was wounded in Vietnam on 27 November 1968, and awarded the Purple Heart, however, there is no evidence in the 

available records to substantiate the applicant’s claim that he was wounded a second time in February 1969.  In the Daily Staff Journal for 26 February 1969, the entry refers to a fourth individual who had sustained an arm injury, wherein the applicant and the medic describe a leg injury.

2.  While the applicant submits a statement from a medic attesting to his being wounded, the statement in lieu of medical documentation is insufficient to justify the award of the Purple Heart.

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 May 1969; therefore, the time for the applicant to file a request for correction of any error or injustice expired on         29 May 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.

4.  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 two awards of the Republic of Vietnam Gallantry Cross Unit Citation with Palm, and a Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation; and
	b.  he is entitled to three bronze service stars on his Vietnam Service Medal.

		____Fred N. Eichorn______
		        CHAIRPERSON

INDEX

CASE ID	AR2003091067	
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.