IN THE CASE OF:	  

		BOARD DATE:	        07 OCTOBER 2008

		DOCKET NUMBER:  AR20080005265 


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 he be awarded the Purple Heart with First Oak Leaf Cluster. 

2.  The applicant essentially states that he should have received a second Purple Heart for injuries he received in the line of duty on 1 June 1971.  

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that was issued on 19 October 1969; his 
DD Form 214 that was issued at the time of his retirement on 15 May 1972, which will simply be referred to as his DD Form 214 throughout the remainder of these proceedings; a DD Form 215 (Correction to DD Form 214) which amended his DD Form 214; a Clinical Record Cover Sheet which shows that the applicant was admitted on 1 June 1971 for a dislocated shoulder; an undated and unsigned statement; an e-mail, dated 2 April 1997; a Clinical Record Cover Sheet which shows that the applicant was admitted on 7 July 1971 for wounds and fractures received on 3 July 1971; a casualty report which shows, in pertinent part, that the applicant was wounded in action on 3 July 1971; two of four pages of his DA Form 20 (Enlisted Qualification Record); and a two-page 
DA Form 1577 (Authorization for Issuance of Awards) in support of this 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 military records show that he enlisted in the Regular Army on 4 August 1967.  He completed initial entry training and was awarded military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic).  He served a tour in Vietnam from 11 January 1968 to 10 January 1969, serving in MOS 63A (Mechanical Maintenance Helper) and MOS 63B.  He then served at Fort Sill, Oklahoma from February 1969 to August 1969.  He departed for his second tour in Vietnam on 11 September 1969, and initially served in MOS 63B.  However, on 15 January 1970, he was awarded primary MOS 11B (Light Weapons Infantryman), and began serving in that MOS with Company E, 2nd Battalion, 8th Cavalry Regiment.  On 10 September 1970, he returned to the continental United States; however, on 12 October 1970, he departed for a tour in Germany.  He returned from Germany on 12 March 1971, then departed for his third tour in Vietnam on 9 May 1971, and was assigned to Company P, 75th Infantry Regiment (Rangers).  He was placed in a patient status on 12 July 1971 and was assigned to the Medical Holding Company, United States Naval Hospital in Guam.  On 19 July 1971, he was reassigned to the United States Naval Hospital in Long Beach, California.  On 15 May 1972, he was honorably retired due to permanent physical disability.  His DD Form 214, as amended by a DD Form 215, shows that he was awarded the Purple Heart, the Bronze Star Medal with First Oak Leaf Cluster, the Air Medal, the Army Commendation Medal with "V" (for Valor) Device, the Good Conduct Medal, the National Defense Service Medal, the Vietnam Service Medal with one silver service star and four bronze service stars, the Republic of Vietnam Campaign Medal with Device (1960), the Combat Infantryman Badge, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Expert Marksmanship Qualification Badge with Automatic Rifle Bar, and the Marksman Marksmanship Qualification Badge with Rifle Bar.  


3.  The applicant essentially requested that he be awarded the Purple Heart with First Oak Leaf Cluster, and provided a Clinical Record Cover Sheet which essentially shows that he was treated for a dislocated shoulder on 1 June 1971 which he sustained when he jumped from a helicopter while closing in on a landing zone.  The applicant also wrote on this document and essentially stated that he was a point man and "tunnel rat" for his Ranger team, and was sitting in the door of the helicopter going out on a mission when they took ground-to-air fire from hostile forces.  He also stated that the helicopter veered to the right sharply, and that he went out the door, hit the ground, and dislocated his right shoulder.  The applicant also provided an undated and unsigned statement in which someone other than the applicant essentially stated that the applicant and others jumped from a helicopter, and that the applicant dislocated his shoulder on impact, but this statement does not state that the applicant hastily exited the aircraft as a result of incoming fire.  He also provided an e-mail, dated 2 April 1997, in which another person related events surrounding the applicant's wounding by a mortar that had a trip wire attached to it, which is not related to the applicant's 1 June 1971 injury.  Additionally, the applicant provided evidence which shows that he was injured by an enemy booby trap on 3 July 1971.  

4.  A check of the Vietnam Casualty Roster shows that there is only one entry showing that the applicant was wounded in action, that being on 3 July 1971, and his military records already essentially show that he was awarded the Purple Heart for this wounding.

5.  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 been treated by medical personnel, and the medical treatment must have been made a matter of official records.  Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire; the wound or injury must have required treatment by medical personnel; and the records of medical treatment must have been made a matter of official Army records.  When contemplating an award of the Purple Heart, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury. The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.
This regulation also states that a Purple Heart is authorized for the first wound suffered under conditions indicated above, but for each subsequent award an oak leaf cluster will be awarded to be worn on the medal or ribbon.

6.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart with First Oak Leaf Cluster.

2.  While the sincerity of the applicant's claim that his dislocated shoulder was caused by hostile fire which made the helicopter he was riding in veer sharply is not questioned; however, the evidence of record does not support his claim.  While the applicant provided a personal statement that this occurred, the Clinical Record Cover Sheet makes no reference to the helicopter he was riding in veering sharply to evade hostile fire.  Additionally, as there is not an entry on the Vietnam Casualty Roster essentially showing that his dislocated shoulder was categorized as an injury as a result of hostile action, it must be presumed that either the medical personnel and/or his chain of command at the time determined that the degree to which the enemy caused his dislocated shoulder did not reach the level threshold for award of the Purple Heart.

3.  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.  Regrettably, in view of the foregoing, there is insufficient basis upon which to award the applicant the Purple Heart with First Oak Leaf Cluster.

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)                                         AR20080005265



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ABCMR Record of Proceedings (cont)                                         AR20080005265



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