IN THE CASE OF:	  

	BOARD DATE:	  29 May 2008

	DOCKET NUMBER:  AR20080000329 


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 that he be awarded the Purple Heart. 

2.  The applicant states that he had requested to be awarded the Purple Heart many times throughout the years and been denied.  However, his medical records show that teeth number eight and nine were fractured during a firefight in 1968 and he received temporary crowns in Vietnam until he was returned to the United States.  He also states that he received fragmentation wounds that have been discovered by the Department of Veterans Affairs (VA) in X-rays during an orthopedic examination. 

3.  The applicant provides a handwritten explanation of his application, a copy of a page from a dental record indicating that on 1 November 1968, teeth number eight and nine were fractured during a fire fight, the results of an orthopedic examination in 1985, and a statement from a fellow Soldier indicating that he had seen the applicant numerous times in Vietnam and that he was made aware that the applicant had been injured several times by fragment wounds. 

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 volunteered for induction in El Paso, Texas on 27 July 1967 and was transferred to Fort Bliss, Texas to undergo his basic combat training and then to Fort Polk, Louisiana to undergo his advanced individual training (AIT) as a light weapons infantryman.  

3.  He completed his AIT and was transferred to Vietnam on 1 January 1968 for assignment to Company B, 3rd Battalion, 7th Infantry Regiment, 199th Infantry Brigade, for duty as a grenadier.  He was advanced to the pay grade of E-4 on 21 March 1968 and to the pay grade of E-5 on 11 October 1968.  

4.  He departed Vietnam on 25 December 1968 and was transferred to Fort Lewis, Washington, where he remained until he was honorably released from active duty (REFRAD) to attend school.  He had served 1 year, 10 months and 8 days of total active service.  His DD Form 214 issued at the time of his REFRAD shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal (VSM), the Vietnam Campaign Medal and the Combat Infantryman Badge.  His DD Form 214 was subsequently amended by the issuance of a DD Form 215 on 17 May 1985 to award him the Army Good Conduct Medal.  On 23 May 1986, a DD Form 215 was issued to award him the Vietnam Service Medal with one silver service star and the Army Commendation Medal. 

5.  The applicant provides a dental record with no name on the record.  A review of the applicant’s final medical and physical examination also fails to note any indication that the applicant was wounded or that he was treated for any wounds.  
6.  A review of the available records, the Vietnam Casualty Listing and a search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System (ADCARS), a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era fails to show any indication that the applicant was wounded as a result of enemy action or that he was ever reported as a casualty in Vietnam or was awarded a Purple Heart.

7.  On 19 August 1986 and 10 June 1988, Officials at the Army Reserve Personnel Center in St. Louis, Missouri informed the applicant and his congressional representative that a search of the applicant’s records, morning reports, list of Purple Heart recipients, and medical records failed to show his entitlement to the Purple Heart.  He was advised to apply to this Board.      

8.  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:

1.  While the sincerity of the applicant's claim that he should have been awarded the Purple Heart for wounds received while he was serving in Vietnam is not questioned, there is insufficient evidence in the applicant's military records, and the applicant failed to provide sufficient evidence which proves, by a preponderance of the evidence, that he met the requirements for award of the Purple Heart.  In view of the foregoing, there is insufficient basis for correcting his military records to show the award of the Purple Heart.
 
2.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.        

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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 the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.





      ___        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)                                         AR20080000329





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ABCMR Record of Proceedings (cont)                                         AR20080000329



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