RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            04 MAY 2004
      DOCKET NUMBER:   AR2004102482


      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:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Mr. Joe Schroeder                 |     |Member               |
|     |Mr. William Powers                |     |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, in effect, that he sustained a bullet wound
through his right leg and was offered the Purple Heart while in the
hospital, but turned it down.  He stated the award would now help with his
Department of Veterans Affairs benefits.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error which occurred on 24
March 1972.  The application submitted in this case is dated 11 October
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.  Records available to the Board indicate the applicant entered active
duty on
15 September 1969.  He was trained as an artilleryman and assigned to
Vietnam in March 1970.  While in Vietnam he was assigned to the 92nd
Artillery.

4.  The applicant remained in Vietnam until February 1971 when he was
reassigned to Europe.  In January 1972 he returned to the United States and
on 24 March 1972 he was released from active duty with an honorable
characterization of service.

5.  Other than an enlistment and separation physical examination, there
were no other service medical records available to the Board.  His
enlistment physical examination notes a scar on the applicant’s right leg
and that same scar was identified on his separation physical examination.
Neither examination indicated the source of the scar and his separation
physical examination made no mention of any wounds received as a result of
hostile action.

6.  Item 40 (wounds) on his Department of the Army Form 20 (Enlisted
Qualification Record) is blank and there is no indication he was ever in a
"patient" status while in the military.  The applicant authenticated the
information on his Department of the Army Form 20 in February 1972, just
prior to his separation from active duty.
7.  The applicant's name is not among a list of individuals reported as
combat casualties during the Vietnam War.  His records do contain a
statement which notes that a search of unit morning reports for the
applicant's Vietnam service also failed to indicate that the applicant had
ever been wounded.

8.  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.

9.  A review of Department of the Army Pamphlet 672-3 indicates that the
applicant's unit was awarded the Republic of Vietnam Gallantry Cross Unit
Citation with Palm and credited with participating in three designated
campaigns (Vietnam Winter-Spring 1970, Sanctuary Counteroffensive, and
Vietnam Counteroffensive Phase VII) while the applicant was assigned to the
unit.  His campaign participation should be reflected by three bronze
service stars on the Vietnam Service Medal which is already reflected on
his separation document.

DISCUSSION AND CONCLUSIONS:

1.  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 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 24 March 1972; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
23 March 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.

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

__SK ___  __JS____  ___WP__  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.

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 entitlement to three bronze service stars on his Vietnam
Service Medal and the Republic of Vietnam Gallantry Cross Unit Citation
with Palm.




            _____Stanley Kelley______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004102482                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040504                                |
|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.                      |                                        |