RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 March 2007
	DOCKET NUMBER:  AR20060009192 


	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. Gerard W. Schwartz

Acting Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Margaret K. Patterson

Chairperson

Mr. Larry W. Racster

Member

Mr. Rodney E. Barber

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 award of the Purple Heart for wounds received in the Republic of Vietnam. 

2.  The applicant states, in effect, that he received wounds as a result of incoming rocket and mortar fire; however, he did not know at the time, that he had to receive medical treatment to qualify for award of the Purple Heart.  He further states that during the mad scramble to the bunker, he was knocked down by other personnel.  The fall caused an injury to his right shoulder and arm, which he treated himself and did not go to an aid station or a nearby hospital. 

3.  The applicant provides a copy of his Report of Separation from Active Duty (DD Form 214), Bronze Star Medal orders, and photos of injury. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 August 1976, the date of his retirement.  The application submitted in this case is dated 4 May 2006.

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.  On 18 January 1951, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and served through a series of enlistments in both the Army National Guard of the United States and the Regular Army.  He retired for length of service on 31 August 1976 in the rank of sergeant first class, pay grade E7.

4.  On 29 August 1968, the applicant was assigned for duty as the Battalion Operations Sergeant, 523rd Signal Battalion, in the Republic of Vietnam.  He served in this capacity until his return to the United States on 30 September 1969.

5.  The applicant's award of the Bronze Star Medal was for his meritorious service in the Republic of Vietnam for his entire tour of duty.  It was not awarded for any specific action in which he may have been wounded or injured as a result of hostile action. 

6.  Item 40 (Wounds) of the applicant's Enlisted Qualification Record (DA Form 20) is blank.  Item 41 (Awards and Decorations) of this same form does not show any award of the Purple Heart.  

7.  There are no general orders in the applicant's records awarding him the Purple Heart.  The applicant's name does not appear on the Republic of Vietnam Casualty Roster.

8.  The applicant's DD Forms 214 show his decorations, medals, badges, commendations, citations and campaign ribbons awarded or authorized as the National Defense Service Medal, Bronze Star Medal, Army Commendation Medal with first oak leaf cluster, Army Good Conduct Medal (five awards), Vietnam Service Medal with four bronze service stars, Vietnam Campaign Medal with "1960" Device, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Army Recruiting Badge,  Driver and Mechanic Badge with/W-Device, and the Expert Marksmanship Qualification Badge with Rifle Bar.  It does not show award of the Purple Heart. 

9.  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 by a medical officer, and the medical treatment must have been made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  There are no general orders that show the applicant was awarded the Purple Heart.  The applicant's name is not listed on the Vietnam Casualty Roster.  The evidence provided by the applicant shows that he received an injury to his right arm; however, it does not provide substantiating evidence that this injury occurred in the Republic of Vietnam or that it was the result of enemy action.  

2.  Therefore, the applicant's request for award of the Purple Heart should not be granted.

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 August 1976; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
30 August 1979.  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

___LWR_  __MKP __  __REB__  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.




__Margaret K. Patterson__
          CHAIRPERSON




INDEX

CASE ID
AR20060009192
SUFFIX

RECON
 
DATE BOARDED
20070315 
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY 
REVIEW AUTHORITY

ISSUES         1.
107.0012
2.

3.

4.

5.

6.