BOARD DATE:	  23 August 2011

		DOCKET NUMBER:  AR20110003501 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his earlier request to upgrade his undesirable discharge to a general discharge under honorable conditions.  He also requests award of the Purple Heart for wounds received in action.

2.  He states:

* he was never afforded any counseling after he was wounded on 11 January 1964
* his outlook on life changed
* he started drinking and was absent without leave on numerous occasions
* he was an exemplary Soldier prior to being wounded
* he received the Army Commendation Medal for his service
* his first enlistment was never taken into consideration upon discharge
* he was a good Soldier and suffered post-traumatic stress disorder as a result of being wounded

3.  He provides copies of:

* two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a casualty message
* telegrams
* newspaper articles


* letters addressed to his parents
* a DD Form 481-3 (Clinical Record Cover Sheet)

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's request for an upgrade of his undesirable discharge was originally considered by ABCMR on 2 February 1983.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-15b, governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within 1 year of the ABCMR's original decision and has not previously been reconsidered.  Since his request for an upgrade of his discharge was not received within 1 year of the ABCMR's original decision, this portion of his request will not be discussed further in this Record of Proceedings.

3.  The applicant enlisted in the Regular Army on 28 June 1960 and was honorably discharged on 11 July 1962 for immediate reenlistment.

4.  He reenlisted on 12 July 1962 for a period of 6 years.  His DA Form 24 (Service Record) shows he arrived in the Panama Canal Zone on 11 September 1962.

5.  He provided copies of telegrams which show he sustained a gunshot wound to the right side of his neck over his midline posterior on 11 January 1964 during rioting in the Panama Canal Zone and the Republic of Panama.

6.  He also provided copies of newspaper articles which reported that:

	a.  He was hospitalized with injuries suffered during recent rioting at Panama Canal Zone border points.  None of the servicemen were critically injured.

	b.  He had been shot in the neck in Panama during the rioting, but he was in good condition.  He had been in the Army about 4 years and in Panama the last 1 to 1 1/2 years.

	c.  He was wounded in the 11 January Panama Canal Zone riots, received an Army Commendation Medal, was promoted to sergeant, and was in charge of 13 Soldiers in a rifle platoon.

7.  In a 17 January 1964 letter, his former company commander informed his parents of the incidents surrounding his injury.  The company commander assured them that the applicant was resting comfortably in the Coco Solo Hospital and was in good condition.  The company commander gave accolades concerning the applicant's service and expressed his condolences regarding the incident.

8.  The applicant's DD Form 481-3, dated 20 January 1964, indicated he had an open gunshot wound to the right side of his neck incurred in the line of duty.

9.  He departed the Panama Canal Zone on or about 11 November 1965.

10.  He was discharged on 18 November 1965.  His DD Form 214 for the period ending 18 November 1965 shows award of the Army Commendation Medal.

11.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded to any member who, while serving under competent authority in any capacity with one of the Army Services, was wounded or killed or who died or may hereafter die after being wounded:

	a.  in any action against an enemy of the United States;

	b.  in any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged;

	c.  while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party;

	d.  as a result of an act of any such enemy of opposing armed forces;

	e.  as a result of an act of any hostile foreign force;

	f.  after 23 March 1973, as a result of an international terrorist attack against the United States or a foreign nation friendly to the United States recognized as such an attack by the Secretary of the Army or jointly by the Secretaries of the separate Armed Services concerned if persons from more than one service are wounded in the attack;

	g.  after 28 March 1973, as a result of military operations while serving outside the territory of the United States as part of a peacekeeping force; or

	h.  was killed or wounded by friendly fire.

12.  Substantiating evidence must be provided to verify 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.

13.  Riots in Panama had occurred previously, but the January 1964 riots were uncommonly serious.  The incident began with a symbolic dispute over the flying of the Panamanian flag in the Panama Canal Zone.  The United States finally agreed to raise the Panamanian and United States flags side by side at one location in the Panama Canal Zone.  Panamanians remained dissatisfied as their flag appeared at only one location in the Panama Canal Zone, while the United States flag flew alone at numerous other sites.  An agreement was finally reached that the United States and Panamanian flags would be flown side by side at several points in the Panama Canal Zone.  United States citizens residing in the Panama Canal Zone were reluctant to abide by this agreement and the students of an American high school, with adult encouragement, hoisted the American flag alone in front of their school on 2 consecutive days.

14.  Word of the gesture soon spread across the border and on the evening of 9 January 1964, nearly 200 Panamanian students marched into the Panama Canal Zone with their flag.  A struggle ensued and the Panamanian flag was torn.  After that provocation, thousands of Panamanians stormed the boarder fence.  The rioting lasted 3 days and resulted in more than 20 deaths, serious injuries to several hundred persons, and more than $2,000,000.00 in property damage.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's gunshot wound was truly unfortunate; however, it was received during a civil disturbance.  The United States was not at war with Panama, Panama's armed forces did not attack the Panama Canal Zone, and the rioters were not a hostile foreign force.

2.  Regrettably, the applicant does not meet the eligibility criteria for award of the Purple Heart.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x__  ___x_____  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices made by him in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      __________x_______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110003501



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