IN THE CASE OF:	  

	BOARD DATE:	  26 June 2008

	DOCKET NUMBER:  AR20080000406 


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 award of the Purple Heart.

2.  The applicant states that he believes he should have been awarded the Purple Heart because he was in the line of duty when he was hit by shrapnel in his back.  He states that he was taken to a field medical tent where the fragment was removed and "stitched up."  He states that he was taken back to camp without anything being said.  He states that he deserves to be awarded the Purple Heart.  He states that when he was asked by the medic what had happened, he told the medic he was hit in the back and knocked face down.  The applicant states that at one time while his wound was being cleaned, the medic said that it looked like fragments from some force.  He states that he told the medic at the time of his injury that he was under mortar attack.  He states that he quit high school at age 17 to serve his country and he believes that it is only fair that he be awarded a Purple Heart for his efforts.

3.  The applicant provides in support of his application, a letter from the Department of Veterans Affairs (VA), addressed to him, dated 25 October 2004; a copy of a letter from the VA, addressed to his wife, dated 3 October 2003; a copy of his Report of Transfer or Discharge (DD Form 214), dated 13 August 1969; a copy of hospital notes; a copy of an incomplete Clinical Record Cover Sheet, dated 24 June 1968; a copy of a VA Request for Physical Examination, dated 3 August 1989; a copy of an admission request, dated 22 June 1968; a complete Clinical Record Cover Sheet, dated 24 June 1968; and a copy of his Orthopedic Examination, dated 19 September 1989.

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.  On 12 August 1966, the applicant enlisted in the Army with parental consent, in Ashland, Kentucky, at age 17, in the pay grade of E-1.  He successfully completed his training as a quarry machine operator.  He was transferred to Vietnam on 1 May 1967.

3.  The available records show that on 27 August 1967, while in Vietnam, the applicant was medically treated at the dispensary for a cut over his left scapula, three inches long and one half inch deep.  The applicant's wound was sutured, his dressing was changed and he was prescribed tetracycline.  

4.  On 3 September 1967, the applicant returned to dispensary and his sutures were removed.

5.  On 30 September 1967, the applicant was treated at the dispensary for a laceration to his right index finger.  Tests for possible fracture were negative.  He was treated for his injury and he was returned to duty.

6.  The applicant returned to the Continental United States on 27 April 1968 and he was assigned to the 13th Engineer Company, Fort Meade, Maryland.

7.  The applicant's Clinical Record Cover Sheet shows that on 22 June 1968, the applicant was treated by a physician for contusion of his back which was determined to have occurred in the line of duty.  However, the details of the applicant's trauma were unknown.




8.  On 13 August 1969, the applicant was honorably released from active duty at the expiration of his term of service and he was transferred to the United States Army Reserve Control Group (Reinforcement) to complete his Reserve obligation.

9.  The DD Form 214 that the applicant was furnished at the time of his discharge shows that while in the Army, he was awarded the National Defense Service Medal; the Vietnam Service Medal; the Republic of Vietnam Campaign medal; the Sharpshooter Marksmanship Qualification Badge (Rifle M-14); the Marksman Marksmanship Qualification Badge (Rifle M-16); and two Overseas Service Bars.

10.  On 25 May 2004, the applicant's DD Form 214 was amended to include the Republic of Vietnam Gallantry Cross w/Palm Unit Citation.

11.  A review of the available records, which includes the Vietnam Casualty Roster, does not show that the applicant was ever wounded in action as a result of hostile action by enemy forces while he was in the Army.

12.  On 19 September 1989, the applicant underwent a VA Orthopedic Examination and during the examination he complained of having constant pain between his shoulder blades and upper dorsal region and weakness in the left ankle joint.  During the examination the applicant gave history of a shell fragment wound in the upper back region between his shoulder blades while he was in Vietnam in 1968, and having his left leg immobilized and in a case for three months while he was in the service.  The physician's impression was chronic ankle sprain; status post fracture of the medial malleolus, well healed, left ankle; shell fragment wound, upper dorsal region with residual symptom of constant pain between shoulder blades; and degenerative arthritis of the lumbar spine, of a mild degree.

13.  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.  This regulation also provides that there are no time limitations for requests for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  A review of the available record fails to substantiate the applicant's contention that he is entitled to the award of the Purple Heart.


2.  Although the record does show that the applicant was injured while he was in Vietnam, there is no evidence in the available record, nor has the applicant submitted any evidence to show that any of his injuries were the result of hostile action by enemy forces.  Therefore, he is not entitled to the award of the Purple Heart.

3.  The Department of VA documentation that the applicant submitted in support of his application regarding fragment wounds to his back were based on information provided to that department by the applicant.  The documents are insufficient justification for awarding him the Purple Heart as they do not verify how his injuries occurred. 

4.  In order to justify correction of a military record the applicant must show 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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        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)                                         AR20080000406



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ABCMR Record of Proceedings (cont)                                         AR20080000406



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