RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           31 March 2005
      DOCKET NUMBER:  AR20040009956


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Ronald J. Weaver              |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 while he was in Saudi Arabia and Kuwait on
       14 January 1991, a cease-fire had been called and they were not
allowed to clear bunkers.  They were ordered to clear houses and he was one
of several individuals responsible for clearing houses.  On 15 January
1991, they had to notify the engineers to blow up those houses because they
were wired to blow if they accidentally tripped one of the wires.  When the
engineers blew up the houses, the explosion caused a cache of ammunitions
and weapons to explode.  He felt a sting and noticed his left arm bleeding.
 A medic treated him by placing a bandage on his left arm and he returned
to duty.  On 31 May 2000, an X-ray revealed a metallic foreign object,
presumably a piece of shell fragment, in his upper left arm.  He is having
a lot of difficulty using his left arm because of that injury.

3.  The applicant provides an undated letter from a unit comrade; his DD
Form 214 (Certificate of Release or Discharge from Active Duty) for the
period ending 31 July 1993; and a compensation and pension examination
dated 18 January 2001.  He also states that a notarized statement was
provided; however, one was not available with the application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 31 July 1993.  The application submitted in this case was
received in this office on 12 August 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.  The applicant’s military records are not available to the Board.  This
case is being considered using reconstructed records which primarily
consist of the documents provided by the applicant.

4.  After having had prior service, the applicant enlisted in the Regular
Army      on 4 April 1975.  His DD Form 214 for the period ending 31 July
1993 shows he served in Southwest Asia from 1 September 1990 to 29 March
1991.  He was released from active duty for the purpose of retirement on 31
July 1993.

5.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part,
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 by a medical officer, and the medical treatment must have been
made a matter of official record.  Individuals wounded or killed as a
result of “friendly fire” in the “heat of battle” will be awarded the
Purple Heart as long as the “friendly” projectile or agent was released
with the full intent of inflicting damage on or destroying enemy troops or
equipment.

DISCUSSION AND CONCLUSIONS:

1.  The Board has carefully considered the circumstances surrounding the
applicant's injuries as described by him.

2.  The Purple Heart is awarded for a wound sustained as a result of
hostile action.  The applicant's injuries were not the result of hostile
action.  The Purple Heart may also be awarded for injuries suffered as the
result of "friendly fire."  However, the “friendly fire” must have been
released in the "heat of battle" with the full intent of inflicting damage
on or destroying enemy troops or equipment.  As the applicant described the
circumstances surrounding his injuries, he was in the midst of a cease-fire
and the houses were not blown up in the heat of a battle.

3.  Regrettably, the Board has determined that the circumstances
surrounding the applicant's injuries do not meet the eligibility criteria
for award of the Purple Heart.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 July 1993; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on          30 July 1996.  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

__wdp___  __rjw___  __lgh___  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.




            __William D. Powers___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040009956                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050331                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |107.0015                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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