RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 15 FEBRUARY 2005
DOCKET NUMBER: AR20040005867
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. Jennifer Prater | |Chairperson |
| |Mr. Thomas Pagan | |Member |
| |Mr. Kenneth Lapin | |Member |
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 sustained shrapnel wounds to his leg and back
in March or April 1969 when the vehicle he was in was destroyed by a land
mine. He states that his wounds were not bad, but were bandaged by a
medic, and then the convoy moved on.
3. The applicant provides no evidence in support of his request.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice
which occurred on 1 May 1970. The application submitted in this case is
dated
12 July 2004.
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 limitations 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’s military records are not available to the Board. This
case is being considered using reconstructed records, which primarily
consist of a copy of the applicant’s separation document.
4. The applicant's separation document indicates that he served on active
duty between 3 May 1968 and 1 May 1970 and that he served in Vietnam
between
22 September 1968 and 13 September 1969. His separation document indicates
that he performed duties as a heavy vehicle driver.
5. The applicant's name was not among a list of individuals reported as
combat casualties during the Vietnam War.
6. 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.
DISCUSSION AND CONCLUSIONS:
1. Unfortunately, there is no medical evidence, and the applicant has not
provided any which confirms that he was wounded as a result of hostile
action while in Vietnam. In the absence of such medical evidence, there is
no basis for an award of the Purple Heart.
2. In order to justify correction of a military record the applicant must,
or it must otherwise satisfactorily appear, that the record is in error or
unjust. The applicant has failed to submit evidence that would satisfy
this requirement.
3. Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 May 1970; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
30 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 timely file in this case.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___JP___ ___TP __ ___KL___ 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.
_____ Jennifer Prater_______
CHAIRPERSON
INDEX
|CASE ID |AR20040005867 |
|SUFFIX | |
|RECON |YYYYMMDD |
|DATE BOARDED |20050215 |
|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. | |
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