RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 12 FEBRUARY 2004
         DOCKET NUMBER: AR2003091256



         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:

Ms. Joann H. Langston		Chairperson
Mr. Lester Echols		Member
Mr. Robert J. Osborn II		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, in effect, that he broke his left leg when he was “blown off a tower by incoming morter [sic] fire….” He states that he also was hit by numerous pieces of shrapnel that he still has. He notes that the incident occurred in September 1969, his leg was put in a cast on 25 September 1969, and that he was ultimately evacuated to Valley Forge General Hospital.

3. The applicant provides a copy of a document, which he contends indicates he was at the battalion aid station on 29 July 1969, information concerning his disability entitlement from the Department of Veterans Affairs, and orders from the 6^th Convalescent Center.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error which occurred on 20 April 1970. The application submitted in this case is dated 1 September 2002.

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 was inducted and entered active duty on 18 April 1968. On his entrance physical examination he noted he had no history of any broken bones.

4. The applicant successfully completed basic combat and advanced individual training. While undergoing training he qualified as an expert with the hand grenade and as a marksman with the M-14 rifle. Orders confirmed he was awarded the associated badges and component bars. The information, however, was omitted from his separation document.

5. In November 1968 his records indicate he was assigned to Fort Benning, Georgia for ranger training. On 29 January 1969 he was issued a temporary physical profile for “acute left knee injury.” The source of the injury was not identified in records available to the Board.

6. There in no indication that the applicant completed ranger training and in April 1969 he was assigned duties as a drill sergeant at Fort Dix, New Jersey.
7. In July 1969 he was assigned to Vietnam as an infantryman/squad leader with the 1^st Battalion, 20^th Infantry.

8. The document submitted by the applicant, which he contends shows he was at the battalion aid station on 29 July 1969, is a “Health Record-Abstract of Service” form which merely indicates that commencing on 29 July 1969 the applicant’s servicing medical and dental activity while assigned to the 1^st Battalion 20^th Infantry was the battalion aid station. That effective date was 2 days after his records indicate he was assigned to the battalion.

9. Orders issued by the 6^th Convalescent Center on 12 October 1969 placed the applicant in an emergency leave status effective 15 October 1969. The emergency leave was granted for a period of 30 days. The orders do not indicate that the applicant was in a patient status and show his unit of assignment as Company B, 1^st Battalion, 20^th Infantry, 11^th Brigade, Americal Division. The applicant’s spouse, according to the emergency leave orders was located in Drexel Hill, Pennsylvania.

10. The applicant’s records contain copies of messages which initially extended the applicant’s emergency leave status an additional 14 days and then an additional 5 days. His final reporting date to return to Fort Lewis, Washington for return shipment to Vietnam was scheduled as 30 November 1969.

11. On 30 November 1969 the applicant’s records indicate that he was assigned to a medical holding company at Valley Forge General Hospital, Phoenixville, Pennsylvania, in a “patient” status.

12. On 20 April 1970 the applicant was released from active duty with an honorable characterization of service. His 15 April 1970 separation physical examination notes a “football knee injury and leg broken in two places twice.” The examining physician indicated that the applicant’s “fractured left distal fibula” was healed. The examination makes no mention of any shrapnel wounds or scars, and no injuries resulting from hostile action.

13. Item 40 (wounds) on his Department of the Army Form 20 (Enlisted Qualification Record) is blank, and the applicant’s name is not among a list of individuals reported as combat casualties during the Vietnam War.

14. In 1971 the applicant requested the Combat Infantryman Badge. The badge was issued to him and in 1997 his separation document was amended to add the Combat Infantryman Badge. The applicant made no mention of being entitled to the Purple Heart in his 1971 correspondence when he asked to be awarded the Combat Infantryman Badge.


15. The applicant’s Department of Veterans Affairs statement indicates that the applicant is rated 70 percent disabled due to service-connected causes, but receives payments at the 100 percent rate due to individual unemployability.

16. 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.

17. A review of Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) notes the applicant’s unit was credited with participating in one designated campaign (Vietnam Summer-Fall 1969) during the applicant’s period of assignment. One bronze service star on the Vietnam Service Medal, which is recorded on his separation document, should reflect his campaign participation. The unit was also awarded the Republic of Vietnam Gallantry Cross Unit Citation with Palm during his tenure with the organization.

DISCUSSION AND CONCLUSIONS:

1. There is no medical evidence, and the applicant has not provided any, that he was wounded as a result of hostile action while in Vietnam. In the absence of such evidence, there is no basis for an award of the Purple Heart.

2. Records show the applicant should have discovered the alleged error or injustice now under consideration on 20 April 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
19 April 1973. 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, 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 3 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__JHL __ __LE ___ __RJO __ 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.

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:

a. he qualified as an expert with the hand grenade and as a marksman with the M-14 rifle and was awarded the associated badges and component bars; and

b. he is entitled to the Republic of Vietnam Gallantry Cross Unit Citation with Palm and one bronze service star on his Vietnam Service Medal.




                  ___Joann H. Langston____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003091256
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040212
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.