RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 October 2005
	DOCKET NUMBER:  AR20050001264 


	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. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. Ted S. Kanamine

Chairperson

Mr. Patrick H. McGann, Jr.

Member

Ms. Carol A. Kornhoff

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 correction of his discharge document to show award of the Purple Heart and that he was in a Prisoner of War (POW) status.

2.  The applicant states, in effect, that he was wounded by mortar fire while clearing landing zones and fire lanes in October 1970 while serving in Vietnam.  He also states, in effect, that while performing similar duties in early December 1970, he and five other Soldiers were ambushed, captured, and taken prisoner.  However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) does not show award of the Purple Heart or his POW status.

3.  The applicant provides a self-authored statement in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 19 February 1971, the date of his separation from active duty.  The application submitted in this case is dated 3 January 2005.

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's military service record shows that he enlisted in the U.S. Army on 17 July 1968.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 51A (Construction and Utility Worker).  He was subsequently awarded MOS 51H (Construction Foreman).

4.  The applicant's military service record shows that he was assigned to Headquarters Company, U.S. Army Engineer Command, Vietnam, Central District Engineer, with duty at Nha Trang Installation, from 21 July 1969 through
17 February 1971.  He was separated from the U.S. Army under honorable conditions on 19 February 1971 after serving on active duty for a total of 2 years, 7 months, and 3 days.

5.  The applicant's DD Form 214, issued at the time of his separation, shows in Item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), that he was awarded the National Defense Service Medal, Vietnam Service Medal, and Vietnam Campaign Medal.

6.  There are no orders in the applicant’s service personnel record which shows that he was awarded the Purple Heart.  There also is no evidence in his records that he was wounded or treated for wounds as a result of hostile action.  His DA Form 20 does not show an entry in Item 40 (Wounds) or list the Purple Heart in Item 41 (Awards and Decorations).  The applicant's name is not listed on The Adjutant General, Casualty Division's, Vietnam Casualty Roster.

7.  The applicant’s records appear to be complete and intact.  There is no evidence in the records that show he was in a POW status while he was in Vietnam.  There are no sworn affidavits, eyewitness statements, or other related documents that would show the applicant was in a POW status.  

8.  The applicant provides a self-authored statement in support of his application in which he states, in effect, that in October 1970 he sustained a wound to his left shoulder.  At that time, a lieutenant told the applicant that he would take care of the paperwork for the Purple Heart.  He also states, in effect, that in early December 1970 he and five other infantry Soldiers were ambushed, overrun, and captured.  He was forced to march north for two days and nights and was then held in a small bamboo cage for approximately two weeks.  During this time, the applicant states that he was questioned and beaten, but later escaped by loosening a few of the bamboo uprights.  He managed to a meet up with a Green Beret patrol that got him back to his unit where a captain told the applicant that he would take care of everything and he was then sent to the medics.  The applicant also states that since he did not have much time left to serve in Vietnam, he was sent to Nha Trang to out-process.  However, the applicant does not provide copies of any documentation, including that which shows his next of kin was ever notified that he was wounded, captured, or reported missing, while he was in Vietnam.

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.  There is no statute of limitations governing requests for award of the Purple Heart.

10.  Comment 2 of a Disposition Form (DF), dated 19 December 1986, and signed by the Chief, POW/MIA Affairs, describes the various documents by which POW status can be determined.  The DF states that a Soldier who was captured and held for just a few hours might not have any evidence in his/her records.  However, a Soldier who was captured and held for a longer period could be identified as having been a POW in a number of places in the Soldier’s military personnel records.  POW status would be shown in the assignment history portion of the military personnel file; it would be reflected in the unit morning report (DA Form 1); it would be documented on a DD Form 1300 (Report of Casualty); and, it would be reflected in correspondence to the Soldier’s next of kin from Headquarters, Department of the Army.  Lastly, if the Soldier had been injured during his/her captivity, there would be entries in the Soldier’s medical records.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to award of the Purple Heart and POW status because he was wounded by mortar fire while clearing landing zones and fire lanes in October 1970 while serving in Vietnam.  However, the applicant provides insufficient documentary evidence to support his claim for award of the Purple Heart.

2.  The applicant further contends that while performing similar duties in early December 1970, he was captured and held for approximately two weeks.  The applicant also contends, in effect, that the POW status is not documented because he did not have much time left to serve in Vietnam and was sent to Nha Trang to out-process.  However, if the applicant was captured in early December 1970 and returned to military control approximately two weeks later; then his return to military control would have been in the mid-to-late December 1970 time 0frame.  Since the applicant did not depart Vietnam until 18 February 1971, this provided Army officials more than a month and a half to report the appropriate changes in the applicant's duty status, to notify his next-of-kin, and document the applicant's status in his military service record.

3.  There is no evidence the applicant was awarded the Purple Heart.  There is no medical evidence of record which shows that the applicant was wounded or treated for wounds as a result of hostile action.  Therefore, there is insufficient evidence upon which to base award of the Purple Heart in this case.


4.  There is no evidence in the applicant’s records to substantiate his claim that he was captured by the enemy while serving in Vietnam, and the applicant has not provided any corroborating evidence in the form of affidavits or other documentation.  He was never reported missing from his unit and there is no medical documentation that would indicate he was ever treated for wounds incurred while in captivity.  In the absence of any evidence, administrative, medical or otherwise, that the applicant was ever captured, or reported missing from his unit, he is not entitled to correction of his records to show that he was a POW.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 19 February 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
18 February 1974.  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

__TSK __  ___PHM_  __CAK __  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.




____ TED S. KANAMINE ___
          CHAIRPERSON




INDEX

CASE ID
AR20050001264
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20051013
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19710219
DISCHARGE AUTHORITY
AR 635-200, Chapter 5
DISCHARGE REASON
Early Separation of Overseas Returnee
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
107.0015.0000
2.
130.0000.0000
3.

4.

5.

6.