RECORD OF PROCEEDINGS


	IN THE CASE OF:	  
		  

	BOARD DATE:	  16 August 2005
	DOCKET NUMBER:  AR20050001634 


	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. Victoria A. Donaldson

Analyst

The following members, a quorum, were present:


Mr. Melvin H. Meyer

Chairperson

Mr. John T. Meixell

Member

Mr. James B. 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 second award of the Purple Heart [correctly known as the Purple Heart (First Oak Leaf Cluster)].

2.  The applicant states that he was told that he was put in for the Purple Heart (First Oak Leaf Cluster) by the 94th Military Police Company while he was Vietnam but he was transferred before he received it.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 23 October 1969, the date of his discharge from active duty.  The application submitted in this case is dated 25 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 applicant’s failure to timely file.

3.  The applicant's records contain several documents which contain the statement "Enlisted Members Records were lost in a fire while home on leave."

4.  The applicant's records contain a 23 October 1969 memorandum signed in the applicant's hand which stated that all of the statements on the DD Form 214 were correct to the best of his knowledge.  The applicant also acknowledged that he was separating from the service on temporary records.

5.  The applicant's DA Form 20 (Enlisted Qualification Record) shows the entry "TEMPORARY MADE AT FT MONMOUTH NJ 8 JAN 69 [8 January 1969].  This form does not show any awards in item 41 (Awards and Decorations) and does not show any entries in item 40 (Wounds).



6.  Item 24 (Decorations Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 does not show that the applicant was awarded the Purple Heart (First Oak Leaf Cluster).

7.  There are no orders in the applicant's service personnel records which show that he was awarded the Purple Heart (First Oak Leaf Cluster).  There also is no evidence in his records that he was wounded or treated for wounds as a result of hostile action.  

8.  The applicant's name does not appear on the Vietnam Casualty Roster. 

9.  Army Regulation 672-5-1 (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 been treated by a medical officer, and the medical treatment must have been made a matter of official records.

10.  Army Regulation 672-5-1 provides, in pertinent part, that the Purple Heart is authorized for the first wound suffered under conditions indicated above, but for each subsequent award an Oak Leaf Cluster will be awarded to be worn on the medal or ribbon.  Not more than one award will be made for more than one wound or injury received at the same instant or from the same missile force, force, explosion, or agent.

11.  Review of the applicant's records indicates entitlement to an additional award that is not shown on his DD Form 214.

12.   Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows the applicant is entitled to award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 8, dated 1974.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to the Purple Heart (First Oak Leaf Cluster).




2.  There are no General Orders that show the applicant was awarded the Purple Heart (First Oak Leaf Cluster).  There is no evidence in his service personnel records which shows that he was wounded or injured as a result of hostile action or treated for such wounds.  The applicant's name is not listed on the Vietnam Casualty Roster.

3.  In the absence of evidence that the applicant was wounded or injured a second time as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart (First Oak Leaf Cluster) in this case.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 23 October 1969; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 22 October 1972.  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.

5.  Evidence shows that the applicant’s records contain administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 3 of the Board Determination/Recommendation section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_MM_____  _JEB____  _JM____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that it was appropriate to waive failure to timely file in this case.



2.  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 to show award of the Purple Heart (First Oak Leaf Cluster).

3.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation. 




_Melvin H. Meyer_
          CHAIRPERSON


INDEX

CASE ID
AR20050001634
SUFFIX

RECON

DATE BOARDED
20050816
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
107.0015.0000
2.

3.

4.

5.

6.