RECORD OF PROCEEDINGS


      IN THE CASE OF:



      BOARD DATE:           15 April 2004
      DOCKET NUMBER:   AR2003091581


      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. G. E. Vandenberg              |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. John P. Infante               |     |Member               |
|     |Ms. Regan K. Smith                |     |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 a second Purple Heart.

2.  The applicant states that he received two separate injuries as a result
of two explosions aboard the United States Ship (USS) Westchester County
(LST 1167) on 1 November 1968.  He states that it has taken the VA
(Department of Veterans Affairs) over 30 years to acknowledge that the
incident occurred.

3.  The applicant provides copies of the recommendations for the Bronze
Star Medal and the Purple Heart submitted by the commanding officer of the
USS Westchester County, statements from the USS Westchester County‘s senior
medical corpsman attesting to rendering medical care to the applicant, and
a copy of the Damage Control Narrative of the 1 November 1968 mining of the
USS Westchester County.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred 20 June 1969, the date of his release from active duty.  The
application submitted in this case is dated 23 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 has previously requested that his records be corrected in
regards to other awards.  Although the specific issue of award of a second
Purple Heart was not addressed at that time, information regarding his
awards was well summarized in the Board previous consideration.  Therefore,
rather than reiterate those facts, Army Board for Correction of Military
Records (ABCMR) in Docket Number AR2002068262, dated 13 August 2002 is
incorporated herein by reference.

4.  It is also noted that previous administrative actions in combination
with the prior Board review have resulted in the correction of his records
to show that his authorized awards are the Bronze Star Medal with “V”
device, the Army Commendation with one Oak Leaf Cluster, the Soldiers
Medal, the Good Conduct Medal, the Purple Heart, the Army Commendation
Medal, the National Defense Service Medal, the Vietnam Service Medal with
three bronze service stars, the Republic of Vietnam Campaign Medal, the
Meritorious Unit Commendation, the Republic of Vietnam Gallantry Cross with
Palm Unit Citation Badge, and the Republic of Vietnam Civil Actions Honor
Medal First Class Unit Citation Badge.

5.  The USS Westchester County commanding officer’s recommendation for the
Purple Heart shows that the applicant received lacerations to his right
hand and arm as a result of the two explosions from mines on 1 November
1968.

6.  In a 1 November 1968 statement from the USS Westchester County‘s senior
medical corpsman, a Navy chief hospital corpsman, the chief states that he
remembers treating the applicant for lacerations to his hand and arm
sustained as a result of the two explosions aboard the ship.

7.  In a 22 October 1994 statement to the VA the HMC also indicated that
the applicant was one of several service members that he treated for
perforated eardrums with bleeding from the ears and nose.  Neither
statement mentions both the wounds to his hand and arm and the ruptured
eardrums, nor do they indicate how the applicant received the lacerations.

8.  Army Regulation 600-8-22, paragraph 2-8, 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.  It
further states that a wound is defined as an injury to any part of the body
from an outside force or agent sustained under one or more of the
conditions listed above. A physical lesion is not required, and that not
more than one award will be made for more than one wound or injury received
at the same instant or from the same missile, force, explosion, or agent.

DISCUSSION AND CONCLUSIONS:

1.  The evidence submitted by the applicant shows that he received both
lacerations to his hand and arm as well a perforated eardrums.

2.  However, there is insufficient evidence to show that the applicant’s
wounds were not received at the same instant or from the same missile,
force, explosion, or agent.  Therefore, award of a second Purple Heart is
not warranted.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 June 1969; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 19 June 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.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

_ JNS___  ___RKS__  __JPI___  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 the 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 insufficient
evidence to show 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.




            __     John N. Slone________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003091581                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040415                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |                                        |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |