RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 JANUARY 2006
      DOCKET NUMBER:  AR20050005311


      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. Deborah L. Brantley           |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William Powers                |     |Chairperson          |
|     |Mr. Thomas Ray                    |     |Member               |
|     |Mr. Randolph Fleming              |     |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 1968 separation document be corrected
to show that he was a POW (Prisoner of War).

2.  The applicant states that his status as a POW was recorded in his
medical records but never transferred to his separation document.  He
states his records confirm his capture and escape from the Viet Cong.  He
also notes that the law was amended in 2003 to remove the requirement that
a former POW be held captive for a minimum of 30 days.

3.  He states he is 220 percent disabled and therefore, POW status will
provide him with no additional benefits.  He states he wants his status
recognized correctly for future representation of his service and legacy to
his family.

4.  The applicant provides a copy of his account of his Vietnam service
from his high school alumni association, extracts from news articles
recounting his award of the Silver Star, a copy of his recognition by the
State of Oklahoma for his military service, a copy of the amendment to
Section 1112(b) of Title 38, United States Code, a copy of his Department
of Veterans Affairs rating, and a copy of the order awarding him the Silver
Star.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 26 September 1968.  The application submitted in this
case is dated
15 March 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.  Records available to the Board indicate the applicant was inducted and
entered active duty on 12 October 1966.  He was trained as an infantryman
and in July 1967 was assigned to the 196th Infantry in Vietnam.

4.  According to the applicant's recounting of events in Vietnam, which is
recorded on his High School's alumni web-site, the applicant was a member
of D Company tasked to help C Company who had run into trouble around the
4th or 5th of January in 1968.  He stated members of his unit found a
helicopter that was downed and been booby trapped.  He states they also
found the co-pilot who was dead and several deceased NVA (North Vietnamese
Army).  He noted they took a break for lunch to await the arrival of a
couple of new replacements.  The applicant states that his commander, known
as "Black Death" because of his reputation as an aggressive captain who
always provided a lot of body counts, led about 20 unit members across the
river and that he (the applicant) and another Soldier took the left flank
as they crossed the river and set up a reactionary force.  He states that
all of a sudden mortars started flying and exploding all around them.  He
was able to take out a machine gun position with his grenade and ultimately
sustained a gunshot wound to his shoulder.  He noted he actually saw the
NVA person that shot him.  He stated that as he and the other Soldier left
their position to attempt to return to the village where the others were
supposed to be.  The other Soldier was killed.  He states he continued up
the creek, found several other Soldiers who were huddled in the corner of a
rice paddy, seeking cover from machine gun fire.  However, because there
was little room for him, the applicant stated he continued up the creek.
He states he ran into three NVA along the creek and shot them.  When he
came across a fourth NVA who was wounded they looked at each other and
chose not to shoot one another.  He noted he was becoming weak as darkness
approached because of loss of blood.  The applicant related that the next
thing he remembered was being dragged by the NVA and placed on a pile of
dead bodies.  He said they did not know if he was dead or alive because he
had no pulse and had leeches all over his body.  He maintains his life was
spared because he was a peanut butter junkie and had 5 or 6 cans of peanut
butter rations in his fatigue leg pocket which the NVA located and began
arguing over.  Ultimately, the applicant related that his training kicked
in and he picked a time when it was dark and quietly crawled off the pile
of dead bodies and headed toward the creek.  He found cover and rested
until morning.  As the sun rose he spotted six NVA setting up an ambush
across from the village where he was hiding in a hog pen.  He states he
stayed there all day and watched them as they were building their
fortifications.  That night he heard choppers landing in the distance and
he headed in that direction.  By the next morning he stated he could hear
friendly forces talking and he crawled back through the village and got to
them.  He states he gave the coordinates from where he was hiding the
previous night so the artillery could adjust their fire.  Finally a Red
Cross ship landed and the wounded were locked in the back of the
helicopter.  He states he was placed in the gunner's chair to hold all the
weapons.  He states he was taken to a unit hospital, sent on to the
Philippines and then to Japan.  He was ultimately evacuated to California
and then on to Fort Sam Houston Texas and finally to Fort Sill, Oklahoma.
He states he was hospitalized for almost a year doing physical therapy and
rehabilitation.

5.  The applicant's Official Military Personnel File contains a copy of an
order, issued on 10 January 1968 by the 20th Surgical Hospital, which
confirmed the applicant's award of the Purple Heart for wounds sustained on
9 January 1968.  Three other Soldiers from the applicant's unit were
awarded the Purple Heart on that same order for wounds they also sustained
on 9 January 1968.

6.  On 27 February 1968 orders were issued by the Americal Division
awarding the applicant the Silver Star for his heroic actions on 8 January
1968.  The citation notes the applicant was cut off from the rest of his
platoon by enemy fire and was the only man on the platoon's left flank when
the enemy opened fire with mortar and automatic weapons fire.  The citation
noted that even though the applicant had the opportunity to withdraw from
his position he elected to remain and fight.  When the enemy attacked in
force the applicant opened fire with his rifle while simultaneously
throwing hand grenades.  It notes his valiant actions gave his fellow
comrades the precious time needed to regroup and counterattack the
onrushing enemy.  It states the applicant personally destroyed a machinegun
position and killed ten enemy combatants.

7.  There were no service medical records available to the Board other than
a copy of the applicant's June 1968 narrative summary compiled as part of
his disability processing, which was provided by the applicant as part of
his request to this Board.  That document noted under the "present illness"
that the applicant sustained a gunshot wound to his right shoulder on 9
January 1968 and that he "lay in a Viet Cong camp for about 20 hours,
before escaping."  It noted he had his wound debridement on 10 January 1968
and on 16 January 1968 he was placed in a plaster dressing and evacuated to
the United States.  The narrative summary was completed at Reynolds Army
Hospital at Fort Sill, Oklahoma.  That same document noted the applicant
arrived at Fort Sill on 6 May 1968.

8.  The Vietnam Casualty Roster indicates the applicant was wounded on
9 January 1968 and that the casualty report was rendered that same day.

9.  On 26 September 1968 the applicant was retired by reason of physical
disability with a 30 percent Army disability rating.

10.  A 2005 copy of the applicant's Department of Veterans Affair's rating
document indicates he has a combined disability rating of 100 percent.  His
heart disease is independently rated at 100 percent, shoulder muscle injury
at 40 percent, diabetes at 20 percent, and 10 percent each for the
condition of the skeletal system, superficial scars, tinnitus, hypertensive
vascular disease and paralysis of sciatic nerve.

11.  The copy of Section 1112(b) of Title 38, United States Code, provided
by the applicant notes the section was amended to remove the requirement
that a former prisoner of war be held in captivity for a minimum of 30 days
in order for certain disabilities to be service connected under the
presumptive provisions of the law.  The disabilities included psychosis,
any of the anxiety states, dysthymic disorder or depressive neurosis,
organic residuals of frostbite, and post-traumatic arthritis.  The
requirement that a former prisoner of war be held for a minimum of 30 days
for a variety of other ailments, remained in effect.  Title 38 of the
United States Code applies to Veteran's benefits.

12.  Army Regulation 635-5, in effect at the time, provided for the
preparation of separation documents.  There was no provision in the
regulation for entering an individual's POW status on the separation
document.

DISCUSSION AND CONCLUSIONS:

1.  According to the evidence available to the Board, the applicant was
wounded on 9 January 1968 and reported as a combat casualty that same day.
His award of the Purple Heart was published the following day.  His award
of the Silver Star was published less than 60 days later.  There is no
mention in any of those documents that the applicant was held by enemy
forces at any time.

2.  The single document which indicated the applicant lay in a Viet Cong
camp for about 20 hours, before escaping was completed in June 1968 at Fort
Sill, Oklahoma.  The source of that information is not confirmed in any
other documents in the applicant's file, or provided by him.

3.  The applicant's argument that because Title 38 was changed to remove
the requirement that a POW be held captive for a minimum of 30 days he is
entitled to have his records corrected to reflect that status is without
foundation.  The amendment to Section 1112(b) pertained to entitlements
associated with Department of Veterans Affairs benefits and not to
correction of an individual's military records or declaration by the
military of an individual as a POW.

4.  Unfortunately, there is insufficient compelling evidence to conclude
the applicant is entitled to designation as a POW.  The comment on his
medical evaluation summary, completed almost 6 months after the fact, when
compared to information available within days of the event precludes
designation as a POW.  Even if such designation were appropriate, there
were no provisions for entering such information on the separation document
during the period in question.

5.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 September 1968; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
25 September 1971.  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

__WP___  ___TR __  ___RF___  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 Powers_______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050005311                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060105                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          | DENY                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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