RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 June 2007
	DOCKET NUMBER:  AR20060016659 


	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. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Ms. LaVerne M. Douglas

Chairperson

Mr. Edward E. Montgomery

Member

Ms. Rea M. Nuppenau

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, in effect, that his military service records be corrected to show that he was injured in combat while serving in Vietnam. 

2.  The applicant states, in effect, that his discharge document does not show that he was injured in combat.  The applicant adds, in effect, that his left knee cap was injured from a piece of sharp metal while serving in Vietnam.

3.  The applicant provides no additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on
9 June 1966, the date of his release from active duty (REFRAD).  The application submitted in this case is dated 17 November 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.  The applicant's military service records show that he enlisted in the Regular Army for a period of 3 years on 10 June 1963.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 67M (Single Engine/Single Rotor Observation Helicopter Mechanic).

4.  The applicant's military service records contain a DA Form 20 (Enlisted Qualification Record).  Item 31 (Foreign Service) of this document shows he served in the Republic of Vietnam from 22 October 1964 through 21 October 1965.  Item 38 (Record of Assignments) shows, in pertinent part, he was assigned to the 117th Aviation Company in Vietnam from 25 October 1964 to
21 October 1965.   

5.  The applicant's military service records contain a Standard Form (SF) 89 (Report of Medical History), dated 17 August 1965, which was completed by the applicant for the purpose of his Annual Class III Flight Physical approximately
2 months prior to his departure from Vietnam.  The SF 89 is absent any indication that the applicant sustained an injury to his left knee.  In addition, Item 34 (Have You Ever Had Any Illness or Injury Other Than Those Already Noted?); Item 35 (Have You Consulted or Been Treated by Clinics, Physicians, Healers, or Other Practitioners Within the Past 5 Years?); and Item 36 (Have You Treated Yourself for Illnesses Other Than Minor Colds?) of the SF 89 show that the applicant placed a checkmark in the “No” column in response to each question.

6.  The applicant's military service records contain a SF 88 (Report of Medical Examination), dated 17 August 1965, which was completed by the attending physician at the time of the applicant’s Annual Class III Flight Physical approximately 2 months prior to the applicants departure from Vietnam.  The
SF 88 is absent any indication that the applicant sustained an injury to his left knee.  In addition, the SF 88, Clinical Evaluation section, Item 37 (Lower Extremities) shows that the attending physician indicated that the applicant’s lower extremities were “Normal.”

7.  The applicant's military service records contain a SF 89, dated 7 April 1966, which was completed by the applicant subsequent to his service in Vietnam for the purpose of his Separation Physical Examination.  The SF 89 is absent any indication that the applicant sustained an injury to his left knee.  In addition, Item 34 (Have You Ever Had Any Illness or Injury Other Than Those Already Noted?); Item 35 (Have You Consulted or Been Treated by Clinics, Physicians, Healers, or Other Practitioners Within the Past 5 Years?); and Item 36 (Have You Treated Yourself for Illnesses Other Than Minor Colds?) of the SF 89 show that the applicant placed a checkmark in the “No” column in response to each question.

8.  The applicant's military service records contain a SF 88, dated 7 April 1966, which was completed by the attending physician at the time of the applicant’s Separation Physical Examination.  The SF 88 is absent any indication that the applicant sustained an injury to his left knee.  In addition, the SF 88, Clinical Evaluation section, Item 37 (Lower Extremities) shows that the attending physician indicated that the applicant’s lower extremities were “Normal.”

9.  There are no orders in the applicant’s military service records which show that he was awarded the Purple Heart.  There also is no evidence in his records that he was wounded or treated for wounds as a result of hostile action.  His DA Form 20 does not show an entry in Item 40 (Wounds) or list the Purple Heart in Item 41 (Awards and Decorations).  The applicant's name is not listed on The Adjutant General, Casualty Division's, Vietnam Casualty Roster.

10.  The applicant's military service records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 9 June 1966.  This document shows that the applicant was honorably REFRAD on 9 June 1966 after completing a total of 3 years active service.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) does not show award of the Purple Heart and Item 27 (Wounds Received as a Result of Action with Enemy Forces) contains the entry, “None.”

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.

12.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Section III (Instructions for the Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge (DD Form 214)) provides item-by-item guidance on the preparation of the DD Form 214.  It states, in pertinent part, that the source documents for entering information on the DD Form 214 will be the DA Form 20 (Enlisted Qualification Record), DA Form 66 (Officer Qualification Record), orders, or any other document authorized for filing in the Official Military Personnel File (OMPF).

13.  Paragraph 55, Item 27 (Wounds Received as a Result of Action with Enemy Forces), states “[e]nter chronologically each wound received as a result of enemy action during the period covered by the DD Form 214 being prepared.  Show both date and place of action if recorded on records available at time of separation.  If records not available, the terminology “No records available” will be entered.  The theater of operation in which the action occurred may be entered if exact location is not recorded.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his military service records should be corrected to show that he was injured in combat while serving in Vietnam. 

2.  There is no evidence the applicant was awarded the Purple Heart.  In this regard, there is no medical evidence of record which shows that the applicant was wounded or treated for wounds as a result of hostile action, which would be the basis for an entry in Item 27 of the DD Form 214 and offer evidence in support of the applicant’s eligibility for award of the Purple Heart.  Therefore, he is not entitled to correction of Item 26 or Item 27 of his DD Form 214.

3.  The medical evidence of record fails to support the applicant’s claim that he sustained an injury to his left knee cap while in combat in Vietnam.  In fact, there is no evidence of record, and the applicant fails to provide evidence, to show that he sustained an injury to his left knee cap while serving in Vietnam.  Therefore, the applicant is not entitled to correction of his records to show he was injured while serving in combat in Vietnam.

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

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 9 June 1966; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 8 June 1969.  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

___LMD__  __EEM__  __RMN _  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.




___LaVerne M. Douglas____
          CHAIRPERSON




INDEX

CASE ID
AR20060016659
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/06/12
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19660609
DISCHARGE AUTHORITY
AR 635-200, Chapter 
DISCHARGE REASON
Expiration Term of Service
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
108.0700.0000
2.

3.

4.

5.

6.