RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  10 January 2008
	DOCKET NUMBER:  AR20070012381 


	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. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Donald Steenfott

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 he be awarded the Purple Heart.

2.  The applicant states, in effect, that he injured his back in a helicopter crash during a troop insertion in Vietnam on 9 September 1970 and was not awarded the Purple Heart.  He states that the regulation has changed to include internal injuries.  He is currently receiving 30 percent disability from the Department of Veterans Affairs (VA) for his injury.

3.  The applicant provides a copy of his NGB (National Guard Bureau) Form 22E (Report of Separation and Record of Service) and a copy of his VA (Veterans Administration) disability rating, with attachments, in support of his request. 

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 record shows he enlisted in the Regular Army on 22 March 1966. He was promoted to specialist five (SP5/E-5) effective 13 June 1966.  He served until he was released from active duty on 8 May 1967, in order to accept an appointment as a warrant officer in the United States Army Reserve (USAR).  

3.  The applicant was appointed as a warrant officer one (WO1/W-1) effective 9 May 1967.  He was promoted to chief warrant officer two (CW2/W-2) with an effective date of 9 May 1968.  He served in Vietnam from 12 June 1967 to 12 January 1969. He served until he was voluntarily released from active duty on 26 June 1969 for the convenience of the Government.  




4.  The applicant's records show that he was appointed in the USAR, as a second lieutenant, effective 27 June 1969.  He was promoted to captain (CPT/O-3) effective 27 June 1970.  He served in Vietnam from 17 October 1969 to 12 October 1970.  He served until he was honorably released from active duty on 13 August 1975.  He was transferred to the USAR Control Group (Reinforcement).

5.  The applicant's DD Form 214, dated 13 August 1975, shows he was awarded the National Defense Service Medal; the Republic of Vietnam Gallantry Cross, with Palm, Unit Citation; the Army Aviation Badge; the Good Conduct Medal; the Vietnam Service Medal; the Bronze Star Medal; the Republic of Vietnam Campaign Medal, with 1960 Device; the Meritorious Unit Citation, 2nd Award; the Distinguish Flying Cross, with one Oak Leaf Cluster; the Air Medal, 34th Award; and the Army Commendation Medal.  His DD Form 214, dated 13 August 1975, does not show any additional awards.  

6.  After a break in service, the applicant's was appointed in the California Army National Guard (CAARNG) on 16 May 1989, in the rank of captain.  He was promoted to colonel (COL/O-6) effective 24 February 2003.  

7.  The applicant served until he was separated for the purpose of retirement on 21 August 2007.  He was transferred to the Retired Reserve in the rank and pay grade of COL/O-6.  

8.  Item 9 (Awards, Decorations & Campaigns), of his DA Form 2-1 (Personnel Qualification Record – Part II), does not show the Purple Heart as an authorized award.

9.  The applicant's name does not appear on the Vietnam Casualty List for a wound received as a result of hostile action.  He served in Vietnam from 12 June 1967 to 12 January 1969 and from 17 October 1969 to 12 October 1970.

10.  There are no orders in the applicant's available personnel records which show that he was awarded the Purple Heart.  There also is no evidence in his records that shows he was wounded or treated for wounds as a result of hostile action during Vietnam.  The applicant's medical records are unavailable for review.

11.  The applicant provides a copy of his VA disability rating, dated 23 September 2006, which shows that he was granted a 10 percent service-connected disability for right sciatic nerve paralysis and 20 percent for degenerative joint disease thoracolumbar spine, status post back injury for a combined rating of 30 percent for his service-connected disabilities.
12.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against the 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 by military medical personnel, and the medical treatment must have been made a matter of official record. 

DISCUSSION AND CONCLUSIONS:

1.  The VA disability rating shows that he was granted a 10 percent service-connected disability for a right sciatic nerve paralysis and 20 percent for degenerative joint disease thoracolumbar spine, status post back injury for a combined rating of 30 percent for his service-connected disabilities.  However, there is no evidence of record which shows that he sustained a wound in combat while serving in Vietnam.  Therefore, the evidence presented does not qualify for award of the Purple Heart.  

2.  There are no orders officially awarding the applicant the Purple Heart, he is not listed on the Vietnam Casualty List, and there are no medical records available to show that he was treated for a wound as a result of hostile action.  Therefore, based on the available evidence presented, there is insufficient basis to approve an award of the Purple Heart.

3.  The applicant alleges that he injured his back in a helicopter crash during a troop insertion in Vietnam on 9 September 1970 and was not awarded the Purple Heart.  However, there is no evidence, and he has not provided any, to support his allegation.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____JP__  __WDP__  __DWS__  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.




_____William D. Powers_____
          CHAIRPERSON




INDEX

CASE ID
AR200700012381
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080110
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
200070821
DISCHARGE AUTHORITY
AR  NGR 635-100
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
107
2.

3.

4.

5.

6.