IN THE CASE OF:	  

	BOARD DATE:	  24 July 2008

	DOCKET NUMBER:  AR20080001949 


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, in effect, award of the Purple Heart (PH). 

2.  The applicant states, in effect, that he was injured three times while serving in the Republic of Vietnam (RVN).  He claims he was hospitalized on the following dates for the conditions listed, while serving in the RVN:  20 August 1966, for heat stroke and malaria; 30 July 1967, for osteochondritis dessicans of the talus; 15 July 1967, for effusion of left knee secondary to trauma; 6 August 1967, for neurological observation and multiple abrasions following a helicopter crash; 4 March 1967, for acoustic trauma (hearing loss); and 4 May 1968, for fractured tallus, right ankle.  He claims that during these periods of hospitalization, he was told he was eligible to receive the PH, but due to combat conditions, the paperwork was never completed.  

3.  The applicant provides the following documents in support of his application:  Enlistment Record (DD Form 4); Enlisted Qualification Record (DA Form 20); promotion and award orders; Report of Medical Examination (SF 88), dated 
20 September 1965; Report of Medical History (SF 89), dated 20 September 1965; Military Medical Record treatment records; and separation document (DD Form 214).

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 that he enlisted in the Regular Army and entered active duty on 20 September 1965, and was trained in and awarded military occupational specialty (MOS) 11H (Infantry Direct Fire Crewman).

3.  The applicant's DA Form 20 shows he served in the RVN from 19 April 1966 through 18 November 1967, and again from 14 February 1968 through 28 March 1968.  Item 38 (Record of Assignments) shows that during his first RVN tour, he was assigned to Company B, 2d Battalion, 327th Infantry Regiment, and the 281st Aviation Company, 10th Combat Aviation Battalion.  During his second RVN tour, he served with Headquarters and Headquarters Company (HHC), 2d Battalion, 505th Infantry Regiment.  Item 40 (Wounds) is blank, and the PH is not included in the list of awards entered in Item 41 (Awards and Decorations).  The applicant last audited the DA Form 20 on 8 January 1968.

4.  The applicant's Official Military Personnel File (OMPF) is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty.  The record also contains no medical treatment records that show he was ever treated for a combat related wound or injury.

5.  On 5 September 1968, the applicant was honorably separated in the rank of sergeant (temporary) after completing 2 years, 11 months, and 15 days of active military service.  The DD Form 214 he was issued shows he earned the following awards:  National Defense Service Medal, Army Commendation Medal, Air Medal, Vietnam Service Medal, RVN Campaign Medal, Combat Infantryman Badge, Parachutist Badge, and Aircraft Crewmember Badge [shown as AIR COMD MEDAL].  The PH is not included in the list of awards contained on the DD Form 214 and the applicant authenticated this document with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his separation.

6.  The applicant provides medical treatment records that show he was treated for various conditions between 1967 and 1968 while serving in the RVN.  None of these records indicate any of the conditions for which the applicant was treated were received as a result of enemy action.

7.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  There was no entry pertaining to the applicant on this list of RVN casualties.

8.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH.  It states, in pertinent part, that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that the wound required treatment by military medical personnel, and a record of this medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to the PH based on various injuries he received and was treated for while serving in the RVN was carefully considered.  However, by regulation, in order to support award of the PH, there must be evidence that the wound for which the award is being made was received as a result of enemy action.

2.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action.  The PH is not included in the list of awards contained in Item 41, and the applicant last audited this record on 8 January 1968 subsequent to his departure from the RVN.  In effect, his audit was his verification that the information contained on the DA Form 20, to include the Item 40 and 41 entries, was correct at that time.  His OMPF is also void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty, and it contains no medical treatment records that indicate he was ever treated for a combat-related wound while serving in the RVN.

3.  Further, the PH is not included in the list of awards contained on the applicant's DD Form 214, which he authenticated with his signature on the date of his separation.  In effect, his signature was his verification that the information contained on the DD Form 214, to include the list of awards, was correct on the date the separation document was prepared and issued.

4.  Finally, his name is not included on the Vietnam Casualty Roster, the official list of RVN battle casualties.  Absent any evidence of record confirming the applicant was wounded in action or treated for a combat-related wound while serving in the RVN, or any indication that conditions listed in the medical treatment documents he provides were incurred as a result of enemy action, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.

5.  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 related to award of the PH.

6.  The applicant and all others concerned should 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  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.



_________x_______________
      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)                                         AR20080001949



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ABCMR Record of Proceedings (cont)                                         AR20080001949



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