RECORD OF PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           02 DECEMBER 2003                  
	DOCKET NUMBER:  AR2003091495

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Patrick H. McGann, Jr.		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 that at the time of his injury by enemy action, his hearing loss or tinnitus was not considered important.  The team doctor made an examination and stated that there was nothing that he could do, returned him to duty, and dismissed the matter.

3.  The applicant provides a copy of a 14 May 2003 facsimile cover sheet from a Member of Congress (MC), and copies of correspondence dated in 1996 concerning this matter, to include a 26 August 1996 letter from the VA Regional Office in Indianapolis informing a MC that the applicant's file did not contain any information regarding the explosion of an enemy mortar round near his face on 24 February 1969, and that his service medical records only referred to his statement regarding the explosion, but there was no confirmation of that incident. The VA Regional Office informed the MC that the applicant should apply to this Board and indicated that it had enclosed the necessary form for him to do so. 

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on           1 October 1972.  The application submitted in this case is dated 24 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 in the Army on 27 January 1960, reenlisted in September 1961 and was discharged in the rank of staff sergeant on 14 March 1967 in order to accept a commission.  He was appointed a second lieutenant on 15 March 1967.

4.  On 1 October 1972 the applicant was released from active duty in the rank of captain and transferred to the Army Reserve Control Group at St. Louis.  His      DD Form 214 shows that he served in Vietnam from 21 February 1969 to          16 February 1970.  That form, which the applicant signed, does not show award of the Purple Heart.   

5.  Thereafter, the applicant served in both the Army Reserve and the Indiana Army National Guard.  A 11 June 1974 report of medical examination shows that he was qualified for appointment [in the Army National Guard] with a physical profile serial of 1 1 1 1 1 1.  In the report of medical history that he furnished for the examination, the applicant did not list any ailments, injuries, or illnesses, past or present.   

6.  The applicant served in the Indiana Army National Guard and was promoted to major on 30 March 1979.  In June 1984 he was discharged from the Indiana Army National Guard in the rank of major.  The following day he enlisted in the Indiana Army National guard in the pay grade of E-7.  The applicant's 14 June 1984 DD Form 214, which he signed, does not indicate an award of the Purple Heart.  

7.  The applicant's Officer Qualification Record shows his service in Vietnam and the awards that he received.  It does not show award of the Purple Heart.  His Personnel Qualification Record created when he served in pay grade E-7 with the Indiana Army National Guard shows his awards, but not the award of the Purple Heart.

8.  On 31 August 1990 the applicant retired from the Army for length of service.  He had over 20 years of active service, and over 9 years of inactive service.  His DD Form 214, which he signed, does not show award of the Purple Heart.

9.  The historical files of Team 67, Military Assistance Command, Vietnam (the applicant's unit while he was assigned in Vietnam) were reviewed at the National Archives in College Park, Maryland.  That review failed to indicate that the applicant had been wounded or injured. 

10.  The applicant's name is not listed on the Vietnam Casualty Roster maintained at this agency.  

11.  Army Regulation 600-8-22 provides that the Purple Heart is awarded for a wound 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.  

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence and the applicant has not submitted any to show that he was wounded in action.  Consequently, there is insufficient evidence to grant his request for award of the Purple Heart.   

2.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

3.  Records show the applicant should have discovered the error or injustice now under consideration on 1 October 1972; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 1 October 1975.  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 __  __MHM _  ___PHM_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.  

		____Fred N. Eichorn______
		        CHAIRPERSON

INDEX

CASE ID	AR2003091495	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031202	
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.