RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            05 FEBRUARY 2004                  
	DOCKET NUMBER:   AR2003091334

	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 was wounded while on a transport escort detail and never received an award of the Purple Heart.  He states that he was treated at an evacuation hospital and returned to duty.  In January 1968 he states he was evacuated to Japan and then to the United States for another medical reason and believes his recommendation for award of the Purple Heart was either lost or misplaced.

3.  The applicant states he should have been given this award because he earned it.  He states he was told that he deserved an award of the Purple Heart and “maybe the Bronze Star.”

4.  The applicant provides a medical record extract indicating removal of fragments from left leg and left forearm.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 
31 May 1984.  The application submitted in this case is dated 9 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 that the applicant entered active duty on 9 April 1964 and served continuously until 31 May 1984 when he retired for length of service.  At the time of his retirement he was serving in pay grade E-7.  During his military career he performed duties as a duty Soldier, recruiter, communications terminal supervisor, infantryman, aircraft electrician, and administration clerk.

4.  The applicant arrived in Vietnam in June 1967 where he was initially assigned duties as an aircraft electrician with the 330th Transportation Company.  On 
21 July 1967 he assumed duties as a “duty soldier” with the same organization.

5.  The medical extract, submitted by the applicant in support of his request, contains no identification information.  It notes, however, that on 25 January 1967 the individual had “fragments” removed from the left leg and left forearm.  The next entry, on 17 January 1968 noted “bilateral pitting edema above boot tops” but there was no infection of the feet or legs.  It also noted that the individual had been sitting a lot for the past 2 days.

6.  According to the applicant’s Department of the Army Form 20 (Enlisted Qualification Record) he was placed in a patient status on 31 January 1968 and ultimately evacuated to Walter Reed Army Medical Center.  As noted in the applicant’s petition to the Board, his evacuation was related to a medical condition not associated with his claim of being wounded as a result of hostile action.

7.  There is no indication the applicant was ever awarded the Purple Heart or inquired about his entitlement prior to his 1984 discharge.  Item 40 (wounds) on his Department of the Army Form 20 is blank.  The applicant last authenticated the information on the form in 1973.  The applicant’s name is not among a list of individual’s reported as combat casualties during the Vietnam War.

8.  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.

9.  Army Regulation 600-8-22 also provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendation, approval through the chain of command, and announcement in orders is required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.

DISCUSSION AND CONCLUSIONS:

1.  Unfortunately, not only does the medical document not identify the record as belonging to the applicant, it does not indicate the source of the fragments.  There is no evidence confirming that the fragments resulted from hostile actions.  In the absence of more compelling medical evidence that the applicant was wounded as result of hostile action, there is no basis for an award of the Purple Heart.

2.  His contention that his recommendation might have been lost or misplaced is not supported by any evidence.  The applicant remained in Vietnam for nearly 2 months after he states he was wounded.  Additionally, he has offered no explanation why he did not pursue the award, for which he believed he qualified, until nearly 20 years after his retirement from active duty, and more than 30 years after the incident.
3.  There is no evidence, and the applicant has not provided any, that he was recommended for or awarded the Bronze Star Medal while in Vietnam.

4.  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.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 May 1984; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
30 May 1987.  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

__FNE __  __JPI   __  __KAH __  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.

		____Fred N. Eichon______
		        CHAIRPERSON

INDEX

CASE ID	AR2003091334	
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.