RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 February 2008
	DOCKET NUMBER:  AR20070013849 


	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

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Mr. Jose A. Martinez

Member

Ms. Susan A. Powers

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 that he be awarded the Purple Heart.

2.  The applicant refers to a letter of support from his former company commander.

3.  The applicant’s former company commander, now Colonel L___, retired, stated that on 19 April 1966 he sent the applicant and the applicant’s squad out after dark to scout the area in the vicinity of their planned assault and to secure a landing zone.  On the way to the planned landing zone, the applicant and his troops ran into a much larger force of Viet Cong.  In the sharp engagement that followed, one Soldier in the applicant’s squad was killed and the applicant was wounded in the neck by a piece of shrapnel.  After joining the applicant on the ground, Colonel L___ suggested that he be evacuated since the wound was in the back of the neck and could have caused damage that was not readily apparent.  The applicant turned down his suggestion, and Colonel L___ did not make it an order.  The company medics treated the applicant’s wound.  After the operation, he recommended the applicant for a Purple Heart and for his third Silver Star.

4.  Colonel L___ stated that when he discovered, in 1986, the applicant had not been awarded the Purple Heart he (Colonel L___) prepared a statement and asked that the matter be looked into.  He did not receive a reply to his statement, but he did not expect one since he assumed any correspondence pertaining to the award would be directed to the applicant.  Since he did not hear anything from the applicant, he assumed the award problem had been solved.  The applicant is a selfless and unassuming individual and it is not in the applicant’s nature to complain or seek things for himself, even those to which he is fully entitled.  Colonel L___ hopes action will be taken to rectify this 39-year oversight.

5.  The applicant provides the statement, dated 6 April 2005, from Colonel L___, and his DD Form 214 (Report of Separation from Active Duty) for the period ending 10 April 1974.

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 in the Regular Army on 22 March 1952.

3.  The applicant arrived in Vietnam for his first tour on or about 22 December 1965.

4.  The applicant was awarded the Silver Star (Second Oak Leaf Cluster) for action on 20 April 1966.  The citation does not mention that he was wounded in action.

5.  On 25 August 1966, the applicant was accidentally injured when a piece of shrapnel entered his left eye while performing duties as an instructor on the Combat Reaction Course.  He was medically evacuated from Vietnam on          14 September 1966.  His left eye was subsequently removed.

6.  Item 40 (Wounds) on the applicant’s DA Form 20 (Enlisted Qualification Record) does not show he was wounded.  He signed his DA Form 20 on 3 March 1972 and last audited it on 25 October 1972.  His name is not on the Vietnam Casualty Roster.

7.  The applicant’s service medical records, except for those pertaining to his eye surgery, are available.  One Standard Form (SF) 600 (Chronological Record of Medical Care) starts with an entry dated 28 June 1963. The next entries on that particular page are dated 9 July 1963, 25 August 1966, and 16 May 1967, respectively.

8.  The applicant completed a physical examination on 26 September 1967.  The SF Form 88 (Report of Medical Examination) did not note any identifying body marks or scars.  On his SF 89 (Report of Medical History), the applicant noted his eye surgery but indicated he had never had any illness or injury other than those already noted.

9.  The applicant completed several physical examinations subsequent to his    26 September 1967 examination.  He did not mention being wounded in the neck on any of those examinations.

10.  The applicant underwent a medical evaluation board as a result of his left eye injury in 1968.  The Narrative Summary noted, “The patient states…There has been no injuries other than those mentioned in the Present Illness….”

11.  The applicant was retained on active duty until he was retired for physical disability on 10 April 1974.

12.  Army Regulation 600-8-22 (Military Awards) states 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 a medical officer, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that the applicant was heavily involved in combat during his first tour in Vietnam.  His award of three Silver Stars is concrete evidence of that.  

2.  The applicant’s former company commander stated that the applicant was wounded during the action for which he was awarded his third Silver Star.  He stated the company medics treated the applicant’s wound. 

3.  The statements of individuals are normally inadequate as the sole basis for an award of the Purple Heart because they do not fulfill the regulatory requirement that there be a record of medical treatment.  

4.  However, it is not solely the lack of medical evidence that makes it difficult to favorably consider award of the Purple Heart in this case.

5.  The applicant’s former company commander recommended the applicant for award of that Silver Star.  Yet, the fact the applicant was wounded during the action and still continued with the mission was not mentioned in the citation.

6.  The applicant’s service medical records are available.  Yet, there is no entry concerning the medics’ treatment of the applicant’s wound in those records and there is no explanation of why such a record might be missing.

7.  More importantly, the applicant’s own actions have failed to substantiate the April 1966 injuries.  Item 40 on the applicant’s DA Form 20, which he signed on  3 March 1972 and audited on 25 October 1972 (earlier versions of the DA Form 20 are not available), does not show he was wounded.  He completed a physical examination on 26 September 1967, yet on his SF 89 he noted only his eye surgery and indicated that he had never had any illness or injury other than those already noted.  He completed several physical examinations subsequent to his 26 September 1967 examination and did not mention being wounded in the neck on any of those examinations.  He underwent a medical evaluation board in 1968.  The Narrative Summary noted that he indicated he had no injuries other than those mentioned in the Present Illness (i.e., his eye injury).

8.  Regrettably, there is insufficient evidence at this time that would warrant awarding the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

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




__Kathleen A. Newman__
          CHAIRPERSON




INDEX

CASE ID
AR20070013849
SUFFIX

RECON

DATE BOARDED
20070812
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
107.0015
2.

3.

4.

5.

6.