RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         02 SEPTEMBER 2004
      DOCKET NUMBER:  AR2004104067


      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. Walter Morrison               |     |Chairperson          |
|     |Mr. William Powers                |     |Member               |
|     |Mr. Ronald Weaver                 |     |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, in effect, that he sustained injuries on 21
October 1970 when the helicopter he was in was shot down.  He states that
he was awarded the Purple Heart and earned it for service to his country.

3.  The applicant provides a copy of his separation report, orders
confirming his retirement by reason of physical disability, extracts from
his service medical records, and copies of photographs of a helicopter.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 22 March 1979.  The application submitted in this case is
dated
10 February 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 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 served an
initial period of military service with the United States Air Force between
1957 and 1963.  In November 1968 he enlisted in the Regular Army and in
December 1969 was appointed as a warrant officer.

4.  According to extracts from his service medical records, he was treated
on
21 October 1970 for multiple body contusions to his extremities and back as
a result of a helicopter accident.

5.  A copy of the applicant’s unit staff duty journal for 21 October 1970,
obtained from the historical files of the 1st Brigade, 101st Airborne
Division, his unit of assignment while in Vietnam, indicate the helicopter
accident resulted from “engine failure.”  The photographs submitted by the
applicant are not identified as the helicopter in question.

6.  The applicant returned to the United States in November 1970 and served
approximately 2 additional months in Vietnam between January and March
1973. The applicant’s file contains no evidence which confirms he was ever
awarded the Purple Heart.

7.  On 22 March 1979 the applicant was retired by reason of physical
disability.  The basis for the physical disability was not in records
available to the Board.

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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence available to the Board indicates that the injuries
sustained by the applicant on 21 October 1970 resulted from a helicopter
accident cause by engine failure.  There is no evidence which confirms that
enemy action was involved.  Both the medical document and the unit’s staff
duty journal indicate that the helicopter incident was accidental.

2.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 March 1979; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
21 March 1982.  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

___WM__  ___WP  _  ___RW__  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.




                                  ____  Ronald Weaver_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004104067                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040902                                |
|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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