IN THE CASE OF:	  

		BOARD DATE:	        21 January 2009

		DOCKET NUMBER:  AR20080016572 


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, in effect, correction of his DD Form 214 (Report of Transfer or Discharge) to show award of the Purple Heart. 

2.  The applicant states that he was shot in Vietnam and that he received the Purple Heart; however, his DD Form 214 does not reflect the Purple Heart.

3.  The applicant provides numerous Western Union telegrams.

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 enlisted on 31 October 1966 for a period of 3 years.  He served in Vietnam from 7 December 1967 until he was wounded on 17 January 1968 and evacuated to the United States on 18 February 1968 for further medical treatment.  On 19 April 1968, he was permanently retired by reason of physical disability. 

3.  The applicant’s DD Form 214 does not show the Purple Heart as an authorized award.   

4.  There are no orders for the Purple Heart in the available records.

5.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS) an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command failed to reveal any orders for the Purple Heart. 

6.  Item 40 (Wounds) on the applicant's DA Form 20 (Enlisted Qualification Record) shows he was wounded on 17 January 1968.    

7.  The applicant's name does not appear on the Vietnam Casualty Roster.

8.  In support of his claim, the applicant provided numerous Western Union telegrams which indicate that he was wounded on 17 January 1968 in Vietnam as the result of a gunshot would to the spinal cord and chest.

9.  A Western Union telegram, dated 18 January 1968, also states that the applicant was on bunker guard when accidentally struck by a round from a pistol which another individual was trying to unload.

10.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 21 January 1968, states the applicant was accidentally shot while on perimeter guard.  His squad leader attempted to unload a pistol and the weapon accidentally discharged striking the applicant in the neck.

11.  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 medical personnel, and the medical treatment must have been made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

Medical evidence of record shows the applicant was accidentally injured in Vietnam, not as a result of hostile action.  There is no evidence in the applicant's service personnel record which shows that he was wounded or injured as a result of hostile action in Vietnam.  Regrettably, there is insufficient evidence on which to award the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x____  ___x_____  __x______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



      _______xxx_______________
               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)                                         AR20080016572



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ABCMR Record of Proceedings (cont)                                         AR20080016572



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