RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  March 8, 2007
	DOCKET NUMBER:  AR20060011266 


	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.


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	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 a third award of the Purple Heart be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for an injury he received on 5 May 1969.

2.  The applicant states he had medical treatment at the 36th Evacuation Hospital in Vung Tau, Vietnam for his face injury but the records [medical] must have been burned or lost.

3.  The applicant provides an affidavit from a former fellow Soldier.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 7 October 1969.  The application submitted in this case is dated 26 July 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 was inducted into the Army on 19 March 1968.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was assigned to Vietnam on 4 October 1968 as a rifleman.  

4.  Item 40 (Wounds) on the applicant's DA Form 20 (Enlisted Qualification Record) shows he received a fragment wound to his right hand and a lower back injury on 21 February 1969.  His name is listed once on the Vietnam Casualty Roster for wounds he received in action on 21 February 1969.

5.  Headquarters, 24th Evacuation Hospital General Orders Number 40, dated 21 February 1969, awarded the applicant the Purple Heart (First Oak Leaf Cluster) for wounds received in action on 21 February 1969.

6.  There are no orders in the applicant's personnel records which award him a third award of the Purple Heart.  His medical records are not available.  

7.  The applicant departed Vietnam on 3 October 1969.  He was discharged from active duty on 7 October 1969.  

8.  His DD Form 214 shows the National Defense Service Medal, the Republic of Vietnam Campaign Medal, the Vietnam Service Medal, the Purple Heart, and the Combat Infantryman Badge as authorized awards.

9.  A DD Form 215 (Correction to DD Form 214) was issued on 24 November 2004 which added the Vietnam Service Medal with four bronze service stars, the Purple Heart (First Oak Leaf Cluster), the Republic of Vietnam Gallantry Cross with Palm Unit Citation Badge, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, the Sharpshooter Marksmanship Qualification Badge with Machinegun and Rifle (M-16) Bar, the Expert Marksmanship Qualification Badge with Rifle (M-14) Bar, and the Marksman Marksmanship Qualification Badge with Automatic Rifle Bar to item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized).  His Vietnam service from 4 October 1969 to 3 October 1969 was added to item 30 (Remarks).

10.  The applicant provided an affidavit from a retired sergeant major (SGM), who was attached to “Reconnaissance, 1st Division, 2nd Battalion, 16th Infantry Rangers” in Vietnam.  The retired SGM stated he was an advisor and provider of guidance for ground troops through the lands of Vietnam, in an effort to provide protection to South Vietnam in various campaigns initiated by the United States.  The retired SGM was assigned to the same company as the applicant during March 1969 through early October 1969.  He described the incident in which the applicant was injured by a piece of shrapnel to the left side of his face and into the ear canal area.  The retired SGM further stated that he witnessed the injury to the applicant’s face, treatment by a medic, and hospital evacuation on or about 5 May 1969.

11.  Army Regulation 600-8-22 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, and the medical treatment must have been made a matter of official record.  An oak leaf cluster is authorized for wear for each additional award of the Purple Heart.  This regulation also provides that there is no statute of limitations on requests for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant sustained a fragment wound to his right hand and a lower back injury on 21 February 1969 as a result of hostile action in Vietnam.  He was awarded the Purple Heart (First Oak Leaf Cluster) for those injuries.  It appears he also received a Purple Heart for wounds received prior to this date.  

2.  The statement provided by the retired SGM is noted.  However, there are no medical documents or other evidence available which verifies he was wounded a third time as a result of hostile action in Vietnam.  His name is listed only once on the Vietnam Casualty Roster for the wounds he sustained on 21 February 1969.  Therefore, there is insufficient evidence on which to grant a third award of the Purple Heart in this case.  

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 7 October 1969; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 6 October 1972.  Although the applicant did not file within the ABCMR's statute of limitations, it is appropriate to waive failure to timely file in this case based on the fact there is no statute of limitations on requests 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:

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.




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          CHAIRPERSON


INDEX

CASE ID
AR20060011266
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070308
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
107.0015
2.

3.

4.

5.

6.