RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2008
	DOCKET NUMBER:  AR20080002504 


	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.




Director



Analyst
      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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 award of the Purple Heart.

2.  The applicant states, in effect, that in the summer of 1971, when removing all vehicles and equipment from his fire base, the front truck in a convoy was struck by an electronically detonated land mine.  He was sitting in the passenger seat of a jeep with his right foot on the door sill.  When the land mine was detonated a piece of shrapnel struck his right shin a few inches below the knee causing a minor injury and on his chest.  He was approximately 30-40 yards from the explosion.  He was treated by company medic who was with the convoy.  His wounds were bandaged and he continued with the mission.  When he returned to camp, the medic and the applicant reported the incident to the first sergeant and the first sergeant said that he would submit the paperwork for a Purple Heart.  His official records for his period of service in the Republic of Vietnam (RVN) were not available.  He can only find a copy of his DA Form 2-1 (Personnel Qualification Record) which shows his service dates in the RVN as 5 February 1971 – 16 January 1972.

3.  The applicant provides copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty).

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 had prior enlisted service from 25 February 1959 through
13 February 1973.  He was honorably discharged to accept appointment as a warrant officer one (WO1).

3.  On 14 February 1973, the applicant was appointed as a Reserve WO1 with concurrent active duty.  He served until 31 March 1982 when he retired in the grade of WO3.

4.  The applicant's official records and service medical records (SMRs) covering his enlisted service from 25 February 1959 through 13 February 1973 were not available for review.  However, his DA Form 2-1 shows he served in the RVN from 5 February 1971 through 16 January 1972.  His unit of assignment is unknown.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 covering his period of service in the RVN does not show award of the Purple Heart.  The applicant authenticated his DD Form 214 with his signature.

6.  There are no medical records in the available military personnel file that show the applicant sustained wounds as a result of hostile action or that show he was treated for wounds sustained as a result of hostile action.  

7.  There are no general orders in the applicant’s records to show he was awarded the Purple Heart.  During the processing of this case, a member of the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the United States Army Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any Purple Heart orders on file for the applicant.

8.  The applicant's name does not appear on the Vietnam Casualty Roster.

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an 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, and the medical treatment must have been made a matter of official record.  This regulation further states that there is no time limit on submission of requests for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to award of the Purple Heart.


2.  The applicant's official personnel record and SMRs from his period of enlisted service were not available for review.  

3.  The available record does not contain any general orders that show the applicant was awarded the Purple Heart.  There is no evidence in his service personnel records which shows he was wounded or injured as a result of hostile action or treated for such wounds.  His name is not on the Vietnam Casualty Roster.  A review of ADCARS failed to reveal any Purple Heart orders on file for the applicant.

4.  In the absence of evidence that the applicant was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case.  Although the applicant contends he was wounded during the summer of 1971, this information is insufficient to meet the regulatory requirements for award of the Purple Heart.  The applicant must show and his official record must verify that he was wounded as a result of hostile action, that the wound required treatment, and that the medical treatment he received was made a matter of official record.  The applicant has failed to provide sufficient evidence to meet this regulatory guidance.  Further, the applicant is a retiree who served for over 20 years and failed to explain why, if he believed he was entitled to award of the Purple Heart, he did not pursue his claim while still on active duty.

5.  Regrettably, the applicant's contentions alone do not provide sufficient evidence to show he was wounded or injured as a result of hostile action.  Therefore, there is no basis to grant award of the Purple Heart.  The denial of this award does not diminish the value of the applicant's service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__js____  __wdp___  __lcb___  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.



							JS
      ______________________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080002504



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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