RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 18 MAY 2004
         DOCKET NUMBER: AR2003096180


         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. Raymond Wagner		Chairperson
Mr. Roger Able		Member
Mr. John Denning		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests award of the Purple Heart.

2. The applicant states that he was injured in Vietnam in September 1971. He was blown from a bunker doorway during a mortar/sapper attack at Tay Ninh, landing on his back. He was knocked out for a while. When he came to, he went to the bunker, helped the injured and returned fire. The next day, he noticed that his left side of his face wasn't working right and that he had really bad back pain. He went to Saigon and received treatment for 10 days for facial paralysis and back injury. He was promised the Purple Heart, but never received it. He has been treated for years at the Huntington VA (Department of Veterans Affairs) Medical Center. At the time of his injury, he did not care if he received the Purple Heart, especially in view of the more serious injuries around him. He now feels that he earned it and should receive it.

3. The applicant provides a copy of a hospital record from the 3d Field Hospital in Saigon, and his medical records from the VA.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an alleged error or injustice which occurred on 31 August 1988. The application submitted in this case is dated 29 September 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 is a retired master sergeant who initially entered military service in August 1965. He had two tours of duty in Vietnam, from June 1966 to June 1967, and from February 1971 to March 1972, in addition to two tours of duty in Thailand, and a tour of duty in Germany.

4. During the applicant's second tour of duty in Vietnam, he was admitted to the 3d Field Hospital in Saigon on 29 September 1971 and diagnosed with left facial paralysis (Bell's type). He was returned to duty on 11 October 1971. The clinical record showing this information does not indicate the cause of his injury.

5. A 19 October 1977 report of medical history that the applicant furnished for a report of medical examination indicates that the applicant had paralysis in Vietnam, but does not indicate the cause of his injury.

6. The applicant retired from the Army on 31 August 1988. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows numerous awards, to include three awards of the Meritorious Unit Commendation, the Bronze Star Medal, the Combat Infantryman Badge, the Meritorious Service Medal, the Army Commendation Medal, the Air Medal, and five awards of the Army Good Conduct Medal. It does not show award of the Purple Heart.

7. A 17 September 2003 VA medical record indicates that the applicant was in Vietnam in March 1967 and his helicopter was shot down. It also indicates that he was again injured when his bunker got hit in September 1971 and he landed on his back. X-rays were taken, but there were no fractures. He was placed on bed rest for a few days.

8. Earlier VA medical records indicate that the applicant reported that he hurt his back on two occasions, as a result of a helicopter crash, and a bunker accident that occurred in 1971. He reported that he developed Bell's palsy as a result of being blown out of a bunker due to an explosion, and that he was hospitalized for ten days.

9. The applicant is receiving a 100 percent disability rating from the VA for post traumatic stress disorder, a 60 percent rating for left lumber plexus injury with radiculopathy, a 40 percent rating for incontinence of bladder, a 30 percent rating for incontinence of bowel, a 20 percent rating for diabetes mellitus, type II, and a zero percent rating for Bell's palsy.

10. The applicant's name is not listed on the Vietnam casualty roster maintained by this agency.

11. On 18 August 2003 a member of this agency requested additional information from the applicant, which the applicant provided, indicating the nature and circumstances of his injuries. The historical records of the 25th Division Advisory Radio Research Support Team were then reviewed at the National Archives in College Park, Maryland, but failed to show that the applicant was entitled to award of the Purple Heart.

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12. 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. The applicant's injury in September 1971 is documented as shown by the clinical record of the 3d Field Hospital in Saigon. The VA medical records also attest to his injuries, the circumstances of which were apparently based on information provided by the applicant.

2. The applicant's account of the circumstances surrounding his injuries is noted; however, there is no corroborating evidence to indicate that he was wounded as a result of hostile action. The VA information concerning his injuries simply iterates the information provided to that agency by the applicant. There is insufficient evidence to show that he was wounded in action. Consequently, he is not entitled to award of the Purple Heart.

3. Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 August 1988; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 August 1991. 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 timely file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__RW___ __RA ___ ___JD __ DENY APPLICATION

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.

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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.




                  ___Raymond Wagner______
                  CHAIRPERSON

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INDEX

CASE ID	AR2003096180
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040518
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.