RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 June 2007
	DOCKET NUMBER:  AR20060017757 


	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.


Ms. Catherine C. Mitrano

 Director

Ms. Phyllis B. Mackey 

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Jerome L. Pionk

Member

Ms. Jeanette B. McPherson

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, to be awarded the Purple Heart.

2.  The applicant states, in effect, that he turned down the Purple Heart due to another Soldier’s mockery in receiving the award.

3.  In support of his application, the applicant submits a copy of his DD Form 214, a copy of his record of assignments (DA Form 2-1, Section VII); a copy of his: Army Commendation Medal, award citation, dated 24 April 1969; General Orders Number 338, (award of the Army Commendation Medal), published by Headquarters, United States Military Assistance Command, Vietnam, dated
27 February 1967; a copy of a citation for the Army Commendation Medal, for meritorious service, for the period April 1968 to March 1969, while stationed in Vietnam; a copy of a clinical record/consultation sheet, dated 1 July 1968; and a letter related to claims for service-connected compensation that he filed with the Department of Veterans' Affairs (VA). 

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an alleged error or injustice, which occurred on 30 April 1980.  The application submitted in this case is dated 
15 December 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 limitation 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 records show that he enlisted in the United States Army on 5 November 1964, with prior enlisted service in the Oklahoma National Guard, the United States Army Reserve, and the United States Marine Corps.  He was assigned for duty in a variety of military occupational specialties (MOS) in the 76-Series (Supply).

4.  The applicant served in Vietnam from 8 August 1965 through 10 August 1966, with the United States Military Assistance Command Vietnam (USMACV).

5.  The applicant served a second tour in Vietnam, from 1 April 1968 through
30 March 1969, with Company B, 5th Battalion, 12th Infantry Regiment, 199th Infantry Brigade.

6.  The applicant was honorably separated from active duty, under the provisions of Chapter 12, AR 635-200, (required service for retirement), on 30 April 1980.  He retired in the rank/pay grade of Sergeant First Class/E-7.  

7.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), of the applicant's DD Form 214, shows he was awarded the following awards:  National Defense Service Medal; Good Conduct Medal Clasp, Bronze 5 Loops; the Vietnam Service Medal, with 1 Silver Service Star and 2 Bronze Service Stars; the Republic of Vietnam Campaign Medal; the Army Commendation Medal, with 4th Oak Leaf Cluster; and the Expert Marksmanship Qualification Badge, with Rifle Bar.  The Purple Heart is not shown on the applicant's DD Form 214.

8.  There is no entry in Item 4 (Assignment Considerations) of the applicant's DA Form 2-1, Personnel Qualification Record, to show that he received a wound in action against a hostile force.

9.  AR 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.  This regulation also provides that there is no statute of limitations on requests for award of the Purple Heart.

10.  There is no entry in Item 9 (Awards, Decorations and Campaigns), of the DA Form 2-1, showing that the applicant was awarded the Purple Heart.

11.  There are no orders in the applicant's military personnel records awarding him the Purple Heart.

12.  The applicant's name does not appear on the Vietnam Casualty List.

13.  The Clinical Record-Consultation Sheet the applicant provided shows he was diagnosed with pain in his right ear which he experienced 3 weeks after a rifle round allegedly was fired or went off about 6 to 8 inches from his ear.  No evidence was submitted to support his allegation of a left leg injury.



14.  A review of the Awards and Decorations Computer Assisted Retrieval System (ADCARS) of the records of the applicant’s unit for the timeframe the applicant served in Vietnam was conducted.  This review failed to show any orders were published authorizing the Purple Heart to the applicant.  

DISCUSSION AND CONCLUSIONS:

1.  To be awarded the Purple Heart, substantiating evidence must be provided to verify the applicant was wounded as the result of hostile action, the wound must have required medical treatment, and the medical treatment must have been made a matter of record.

2.  There is insufficient evidence, to show he sustained the injury to his ear as a result of enemy action or while engaged with the enemy.  The applicant’s records are void of any indication he was wounded in the left leg while he served in Vietnam.

3.  A search of the Vietnam Casualty List failed to reveal the applicant received treatment for any wounds while he served in Vietnam.  

4.  It is noted the applicant continued to serve after his service in Vietnam and there is no indication he ever surfaced this alleged error or injustice to either his chain of command or to medical service providers while he was on active duty.   Based on the available evidence, the applicant is not entitled to award of the Purple Heart. 

5.  Evidence shows that the applicant’s records contain administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION /RECOMMENDATION section below.

6.  The applicant served in a unit, which was awarded the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation; and the Republic of Vietnam Civil Actions Honor Medal, First Class, Unit Citation; while he was a member of the unit.  These unit awards are not shown on his DD Form 214.  He is entitled to these unit awards and to have them added to his DD Form 214.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 April 1980; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
29 April 1983.  Although the applicant did not file within the ABCMR’s statue of limitations, it is appropriate to waive failure to timely file based on the fact that there is no statue of limitations on requests for award of the Purple Heart. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___A____  ___JP___  __JBM___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned by:  awarding the applicant the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation; and the Republic of Vietnam Civil Actions Honor Medal, First Class, Unit Citation; and adding these unit awards to his DD Form 214. 




____James E. Anderholm________
          CHAIRPERSON




INDEX

CASE ID
AR20060017757
SUFFIX

RECON

DATE BOARDED
20070626
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
107.0015
2.

3.

4.

5.

6.