RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 30 August 2005
DOCKET NUMBER: AR20050001337
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. Wanda L. Waller
Analyst
The following members, a quorum, were present:
Mr. Paul Smith
Chairperson
Ms. Yolanda Maldonado
Member
Mr. Leonard 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 correction of his military records to show award of the Purple Heart.
2. The applicant states, in effect, he was hit by hostile artillery fire in his left thigh on 7 August 1969 in Vietnam. He contends that two other Soldiers were wounded and two Soldiers were also killed in the incident. He further contends his first lieutenant told him he would put him in for the Purple Heart; however, the first lieutenant was subsequently killed in a motorcycle accident.
3. The applicant provides a roster of enlisted personnel and an unidentified roster.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error which occurred on 31 January 1986. The application submitted in this case is dated 21 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 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 applicants failure to timely file.
3. The applicant enlisted on 29 October 1965 for a period of 3 years. He served as a lineman in Vietnam from 3 October 1966 through 28 September 1967 and was released from active duty on 28 October 1968. He reenlisted on 8 January 1969 for a period of 3 years. He served as a platoon sergeant assigned to Company A, 459th Signal Battalion in Vietnam from 5 June 1969 through 16 May 1970. On 6 January 1972, the applicant was honorably discharged for immediate reenlistment. The applicant reenlisted on 7 January 1972 and remained on active duty through continuous reenlistments until he retired on
31 January 1986 in the rank of first sergeant.
4. The applicant's four DD Forms 214 (Report of Transfer or Discharge/Report of Separation from Active Duty/Certificate of Release or Discharge from Active Duty) do not show the Purple Heart as an authorized award.
5. There is no evidence in the available records which shows that the applicant was awarded the Purple Heart or was wounded as a result of hostile action in Vietnam.
6. The applicant's DA Form 20 (Enlisted Qualification Record) does not show entitlement to the Purple Heart and item 40 (Wounds) on his DA Form 20 is blank. The applicant's name does not appear on the Vietnam Casualty Roster.
7. 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, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. There is no evidence of record which shows that the applicant was wounded or treated for any injuries as a result of hostile action in Vietnam. Therefore, there is insufficient evidence on which to base an award of the Purple Heart in this case.
2. Records show the applicant should have discovered the alleged error now under consideration on 31 January 1986; therefore, the time for the applicant to file a request for correction of any error expired on 30 January 1989. Although the applicant did not file within the ABCMR's statute of limitations, it is appropriate to waive failure to timely file based on the fact there is no statute of limitations on requests for award of the Purple Heart.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
PS_____ YM______ LH______ 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.
_Paul Smith___________
CHAIRPERSON
INDEX
CASE ID
AR20050001337
SUFFIX
RECON
DATE BOARDED
20050830
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
107.0015
2.
3.
4.
5.
6.
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