RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          3 August 2004
      DOCKET NUMBER:  AR2004100071


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Ms. Gail J. Wire                  |     |Member               |
|     |Mr. John T. Meixell               |     |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 that his report of separation (DD Form 214) be
corrected to reflect the Purple Heart and the time he spent in Vietnam
during the period of 1 September 1969 through February 1970.

2.  The applicant states that his DD Form 214 does not reflect his service
in Vietnam or the Purple Heart he was awarded.

3.  The applicant provides what appears to be a fabricated document from
the War Department, dated 1 June 1972, his separation orders, documents
from the Department of Veterans Affairs (VA), illegible copies of rosters,
a letter from the applicant's wife to a congressional representative, and a
letter to the applicant from a registered nurse who served in Vietnam.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 16 March 1971.  The application submitted in this case is dated
22 September 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.  The applicant was inducted in Newark, New Jersey, on 20 March 1969.  He
completed his basic combat training at Fort Dix, New Jersey, and was
transferred to Fort Leonard Wood, Missouri, to undergo his advanced
individual training (AIT) as a pioneer.  Upon completion of his AIT he was
transferred to Alaska on 12 August 1969, where he was assigned to the 559th
Engineer Company, at Fort Wainwright.

4.  On 10 October 1969, Unit Orders Number 63, published by the 559th
Engineer Company at Fort Wainwright, promoted the applicant to the pay
grade of E-3.  On 15 January 1970, unit orders Number 7, published by the
559th Engineer Company, promoted the applicant to the pay grade of E-4.
This information is further corroborated by morning reports contained in
his records.
5.  On 16 February 1971, Special Orders Number 37, published by the 171st
Infantry Brigade (Separate) (Light), at Fort Wainwright, directed the
applicant's reassignment to the Replacement Station at Fort Lewis,
Washington, effective 16 March 1971, for separation on the expiration of
his term of service (ETS).  The orders also indicated that the applicant
had served 19 months in Alaska.

6.  On 16 March 1971, he was honorably released from active duty (REFRAD)
at Fort Lewis, as an overseas returnee.  He had served 1 year, 11 months
and 27 days of total active service and had served 1 year, 7 months and 27
days in Alaska.

7.  The document submitted by the applicant as his proof of entitlement to
the Purple Heart is a poorly fabricated/altered document from the War
Department dated in June 1972.  It is not consistent with any military
correspondence and has a signature of the then Chief of Staff of the Army,
which thanks the applicant for his service in Vietnam and informs him that
the Army was sending him the National Defense Medal, Service Ribbon with
clip and bar and the Purple Heart and Ribbon that he rightfully deserved
for being wounded under combat.  The authentication is stamped at Fort
Lewis, Washington, and the Chief of Staff of the Army was actually at the
Pentagon, Washington D.C.

8.  The separation orders submitted by the applicant dated 15 March 1971
and published at Fort Lewis, Washington, which indicate that the applicant
was relieved from active duty by reason of physical disability are also
altered documents and are not consistent with Army orders formats.

9.  A review of the applicant's Official Military Personnel File (OMPF)
fails to show any evidence that the applicant ever served in Vietnam or
that he was ever wounded. A review of units in Vietnam also fails to show
that there was ever a 558th Engineer unit of any size ever deployed in
Vietnam, which is the unit he claims to have served with in Vietnam.
Additionally, his name is not contained on the Vietnam Casualty Listing.

10.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple
Heart is awarded for a wound/injury sustained as a result of hostile
action.  Substantiating evidence must be provided to verify that the
wound/injury was a result of hostile action, that the wound/injury must
have required treatment by a medical officer, and that the medical
treatment was made a matter of official record.

11.  United States Code, Title 18, Section 287, 1001, provides, in
pertinent part, that an individual shall be fined or imprisoned for not
more than 5 years, or both for making a false statement or claim.

12.  The United States War Department was a Federal executive department
organized in 1789 to administer the military establishment.  It was
reconstituted in 1947 as the Department of the Army when the military
administration was reorganized.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, 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.

2.  The applicant's contention that he served in Vietnam from September
1969 through February 1970 is without merit.  The applicant's records
clearly document events that occurred during that period and in each
instance they clearly show that he was in Fort Wainwright, Alaska, from the
time he completed his AIT until he was released from active duty due to his
ETS.

3.  Inasmuch as he remained in Alaska his entire tour, he could not have
served in Vietnam, nor could he have been wounded in combat.  This is
further supported by the fact that he has submitted no creditable evidence
that supports his contentions.

4.  The documents submitted by the applicant from the War Department
indicating that he was being sent the Purple Heart are not accepted as
creditable evidence because they are not consistent with the facts.  The
War Department ceased to exist as the War Department in 1947, some 24 years
earlier, and has been referred to as the Department of the Army since 1947.
 Additionally, the separation orders submitted by the applicant are also
not consistent with the type of separation claimed by the applicant
(physical disability) and as such are not acceptable as creditable
evidence.

5.  Accordingly, until the applicant can produce original documents and
creditable evidence to substantiate his claim, there is no basis to grant
his request.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 March 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 15 March 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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

__fe____  __gjw___  __jtm___  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.



                                  Fred Eichorn
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100071                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040803                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |61/PH                                   |
|1.107.0015              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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