RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 MARCH 2005
      DOCKET NUMBER:  AR20040003065


      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. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas Howard                 |     |Chairperson          |
|     |Mr. Robert Osborn                 |     |Member               |
|     |Mr. James Gunlicks                |     |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 that he was a dog handler in Vietnam.  When he
attempted to cross a stream in November 1970, his dog did not jump when he
did, causing him to fall and injure his knee.

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or
Discharge) and a copy of a Department of Veterans Affairs rating decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 8 July 1971.  The application submitted in this case is
dated 10 June 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 was inducted into the Army on 13 August 1969, trained as
an infantryman and in June 1970 was assigned to Fort Benning, Georgia for
training as a scout dog handler.  In November 1970 the applicant was
assigned to the 47th Infantry Platoon, Scout Dogs, of the 101st Airborne
Division, in Vietnam.  He completed his tour of duty in Vietnam, returned
to the United States, and was released from active duty on 8 July 1971 in
the grade of sergeant at Fort Lewis, Washington.  Prior to his release from
active duty the applicant underwent a physical examination.  The report of
his medical examination does not show that he was injured or that he was
wounded in action.  He was medically qualified for separation with a
physical profile serial of 1 1 1 1 1 1.

4.  In 1984 the applicant requested to St. Louis that he be awarded the
Combat Infantryman Badge.  A 14 July 1987 DD Form 149 (Application for
Correction of Military or Naval Record) shows that he again requested award
of the Combat Infantryman Badge.  On 8 September 1987 his DD Form 214 was
corrected to reflect award of the Good Conduct Medal, Vietnam Service Medal
with one bronze service star, Republic of Vietnam Campaign Ribbon with
device (1960), Combat Infantryman Badge, Republic of Vietnam Gallantry
Cross Unit Citation with Palm, and various marksmanship awards.

5.  The VA has awarded the applicant a 10 percent service connected
disability for knee pain and a 10 percent rating for back pain.

6.  Army Regulation 600-8-22 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.  Examples of enemy-related injuries
include injury caused by enemy bullet, shrapnel, or other projectile
created by enemy action, injury caused by enemy placed mine or trap, and
concussion injuries caused as a result of enemy generated explosions.
Examples of injuries or wounds which clearly do not qualify for award of
the Purple Heart include frostbite or trench foot injuries, heat stroke,
and accidents, to include explosive, aircraft, vehicular, and other
accidental wounding not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence and the applicant has not submitted any to show
that he was wounded as a result of hostile action.  The applicant’s injury
was clearly accidental, and not caused by any enemy action.  Consequently,
he is not entitled to award of the Purple Heart.

2.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 July 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 7 July 1974.  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

___HT  __  ___RO__  ___JG    _  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.




                                  _____Thomas Howard______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040003065                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050322                                |
|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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