RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060013709 


	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. Kathleen A. Newman

Chairperson

Mr. David K. Haasenritter

Member

Ms. LaVerne M. Douglas

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 that on 22 April 1970, he received a fragment wound in his left leg while engaged in a fire fight not far from the Bearcat Base Camp.  The applicant further related that the medic who treated him said he would turn in a recommendation for the Purple Heart to the platoon sergeant.  

3.  The applicant provides a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214); a witness statement stating that the applicant was wounded in action on 22 April 1970; a medical report indicating that there are several foreign bodies in the soft tissue of the applicant's left leg; orders and certificate awarding the applicant the Bronze Star Medal for heroism; and a copy of the Tropic Lightning News, dated 18 May 1970,  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 28 February 1990, the date he was retired.  The application submitted in this case is dated 19 September 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 3 October 1966, the applicant was inducted in the Army of the United States for 2 years.  He completed his initial training and served through a series of enlistments until his retirement for length of service on 28 February 1990 in the rank of master sergeant, pay grade E8.

4.  The applicant was assigned for duty in the Republic of Vietnam from 
12 September 1967 to 5 May 1968; and again from 1 July 1969 to 28 June 1970.  

5.  The applicant's records no longer contain data regarding his specific duties or units prior to 13 February 1973.

6.  General Orders Number 7421, 25th Infantry Division, dated 3 July 1970, awarded the applicant the Bronze Star Medal for heroic action on 22 April 1970 in connection with military operations against a hostile force.  He distinguished himself while serving with Company A, 2nd Battalion, 34th Armored Regiment, while on a reconnaissance operation.  The citation indicates that he exposed himself to a hail of enemy fire as he directed his armored vehicle into strategic fighting position and placed devastating suppressive fire on the hostile positions. The citation does not indicate that the applicant was wounded during this action. 

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 with three oak leaf clusters and "V" Device, Meritorious Service Medal with one oak leaf cluster, Army Commendation Medal with two oak leaf clusters, Army Achievement Medal with one oak leaf cluster, Army Good Conduct Medal (seven awards), Army Service Ribbon, Noncommissioned Officer Professional Development Ribbon with Numeral 4, Vietnam Service Medal with four bronze service stars, Vietnam Campaign Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Combat Infantryman Badge,  Drill Sergeant Identification Badge, and the Expert Marksmanship Qualification Badge with Pistol 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 indicates that he was wounded in his left leg during hostile action with the enemy and received medical treatment for this wound.  However, there is no evidence of record substantiating this medical treatment.
 
2.   In view of the above, the evidence does not provide a sufficient basis for award of the Purple Heart.  Therefore, the applicant's request should not be granted. 

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 28 February 1990; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
27 February 1993.  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

__DKH__  ___LMD _  __KAN __  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.



__    Kathleen A. Newman___
          CHAIRPERSON
INDEX

CASE ID
AR20060013709
SUFFIX

RECON
 
DATE BOARDED
20070320 
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
. .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
107.0015
2.

3.

4.

5.

6.