IN THE CASE OF:	  

		BOARD DATE:	  11 September 2008

		DOCKET NUMBER:  AR20080005367 


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, he was hit by shrapnel in 1969, while serving in the Republic of Vietnam (RVN), and was medically evacuated to an Army hospital and later returned to duty.  He states that he has a scar on his left wrist to prove this injury.  

3.  The applicant provides no additional documentary evidence 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 of the United States and entered active duty on 4 June 1968.  He was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman), and specialist four (SP4) is the highest rank he attained while serving on active duty.  

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows he served in the RVN from 2 November 1968 through 27 October 1969.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to D Troop, 
2nd Squadron, 1st Cavalry Regiment, 4th Infantry Division, and performed duties in MOS 11B as a rifleman and grenadier. 

4.  Item 40 (Wounds) of the applicant's DA Form 20 is blank, and the PH is not included in the list of awards contained in Item 41 (Awards and Decorations). Item 48 (Date of Audit) shows the applicant last audited the DA Form 20 on 
22 May 1970.  

5.  The applicant's record is void of any orders or other documents that indicate the applicant 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 indicate he was ever treated for a combat-related wound or injury while serving in the RVN.  The record does include a Record of Medical Examination (SF 88) and Report of Medical History (SF 89) that document the applicant's separation medical examination.  Neither of these forms note a combat related wound or injury.  

6.  On 3 June 1970, the applicant was honorably released from active duty after completing a total of 2 years of active military service.  The DD Form 214 he was issued at the time shows he earned the following awards:  National Defense Service Medal; 2 Overseas Bars; Combat Infantryman Badge; Vietnam Service Medal with 3 bronze service stars; Vietnam Campaign Medal with 60 Device; Expert Marksmanship Qualification Badge with Rifle (M-14) Bar; Sharpshooter Marksmanship Qualification Badge with Machinegun Bar; and Marksman Marksmanship Qualification Badge with Rifle (M-16) Bar.  The PH is not included in the list of awards entered on the separation document, and the applicant authenticated the DD Form 214 with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his separation.  

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 because he received a shrapnel wound 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; 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. 

2.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action.  The PH is also not included in the list of awards contained in Item 41, and the applicant last audited this record on 22 May 1970, 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, were correct at that time.   

3.  In addition, the applicant's record 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.  It also contains no medical treatment records that indicate he was ever treated for a combat-related wound while serving in the RVN.  

4.  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.  

5.  Finally, the applicant's name is not included on the Vietnam Casualty Roster, the official DA 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, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  

6.  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.  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)                                         AR20080005367



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ABCMR Record of Proceedings (cont)                                         AR20080005367



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