IN THE CASE OF:	

	BOARD DATE:	  10 July 2008

	DOCKET NUMBER:  AR20080002634 


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, that his record be corrected to show two awards of the Purple Heart (PH).

2.  The applicant states, in effect, that he was awarded the PH upon his discharge and should have received two awards of the PH; however, his record was changed for some unknown reason.  He claims he was wounded while serving in the Republic of Vietnam (RVN) and that his records were changed for some unknown reason.

3.  The applicant provides a self-authored letter and copies of what he claims to be his original separation document (DD Form 214) and PH Certificate in support of his application.

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 was inducted into the Army and entered active duty on 23 September 1964, and was trained in and awarded military occupational specialty (MOS) 36C (Lineman).

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows he served in the RVN from 13 August 1965 through 9 August 1966.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to the 578th Signal Company, 41st Signal Battalion, performing duties in MOS 36C as a lineman.  Item 40 (Wounds) is blank, and the PH is not included in the list of awards entered in Item 41 (Awards and Decorations).

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 10 August 1966, the applicant was honorably separated in the rank of specialist four after completing 1 year, 10 months, and 18 days of active military service.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued at the time shows he earned the following awards:  National Defense Service Medal, Vietnam Service Medal, RVN Campaign Medal, and Expert Marksmanship Qualification Badge with Rifle Bar.  The PH is not included in the list of awards contained in Item 26, and Item 27 (Wounds Received As A Result of Action with Enemy Forces) contains the entry "None."  The applicant authenticated the DD Form 214 with his signature in Item 34 (Signature of Person Being Transferred or Discharged) on the date of his separation.

6.  The applicant provides a copy of a DD Form 214 that lists the PH in Item 26 with the annotation (See Attachment).  Item 27 of this same separation document still contains the entry "None."  He also provides a PH Certificate, dated 29 May 1966, which indicates he was awarded the PH for being wounded in action in the RVN.

7.  During the processing of this case, a member of the Board staff reviewed the Department of the Army Vietnam Casualty Roster.  There is 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 was awarded a PH upon his discharge and is entitled to two awards of the PH 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, that it was treated by military medical personnel, and a record of this treatment must have been made a matter of official record.

2.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action, and the PH is also not included in the list of awards contained in Item 41.  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, notwithstanding the copy of the DD Form 214 provided by the applicant which includes the PH in Item 26, the PH is not included in the list of awards contained on the DD Form 214 on file in the applicant's OMPF, which also includes an entry in Item 27 confirming he was never wounded as a result of enemy action.  The applicant authenticated this separation document 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 in Item 26 and the entry in Item 27, was correct on the date the separation document was prepared and issued.

4.  Finally, the applicant's name is not included on the Vietnam Casualty Roster, the official list of RVN battle casualties.  Absent any evidence of record that corroborates the information contained on the DD Form 214 and PH Certificate copies provided by the applicant and/or that confirms he was wounded in action or treated for a combat-related wound while serving in the RVN, 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)                                         AR20080002634



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080002634



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1