IN THE CASE OF:	  

		BOARD DATE:	  4 September 2008

		DOCKET NUMBER:  AR20080005948 


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, reconsideration of his earlier petition to be awarded the Purple Heart (PH).

2.  The applicant states, in effect, that his military personnel and service records were not fully reviewed during the original review of his case.

3.  The applicant provides the following documents in support of his application:  Statement in Support of Claim (VA Form 21-4138); Clinical Record Cover Sheet (DA Form 8-275-3); Department of Veterans Affairs (VA) Disability Rating 
(VA Form 21-6796); Separation Document (DD Form 214); and PH and 
Army Commendation Medal (ARCOM) Certificates.  

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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070015959 on 13 March 2008.

3.  During its original review of the case, the Board found no evidence to 
corroborate the applicant's contention that he was wounded in action in the Republic of Vietnam (RVN).  It further determined there was no evidence of record that indicated the applicant had ever been awarded the PH by proper authority while serving on active duty.  The Board finally concluded that absent any evidence of record confirming the applicant was wounded in action or treated for a combat related wound by military medical personnel, there was insufficient evidence upon which to base award of the PH.   

4.  The applicant now provides, as new evidence, a DA Form 8-275-3, dated 
11 August 1970, which shows the applicant was wounded in action on 9 August 1970, in the Republic of Vietnam (RVN), when he was struck by hostile fragments.  This medical clinical record further indicates the applicant was awarded the PH at the 91st Evacuation Hospital on 10 August 1970, in General Orders Number 180.  He also provides a VA rating decision, dated 26 January 1971, which indicates the applicant’s service clinical records show he sustained a lacerating injury of the scalp from a hostile shell fragment on 9 August 1970, which serving in the RVN.  

5.  The applicant's record shows he was inducted into the Regular Army and entered active duty on 19 March 1969.  He was trained in, awarded, and served in military occupational specialty (MOS) 11F (Infantry Operations and Intelligence Specialist), and the highest rank he attained while serving on active duty was specialist four (SP4).

6.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he served in the RVN from 27 January through 19 December 1970.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to 
40th Information Support Program Division (ISPD), 4th Infantry Division from 
28 February through 4 May 1970; and to the 48th ISPD, 196th Brigade, from 
5 May through 14 December 1970.  Item 41 (Awards and Decorations) shows he earned the following awards during his active duty tenure:  National Defense Service Medal (NDSM); Combat Infantryman Badge (CIB); Vietnam Service Medal (VSM); and Sharpshooter Marksmanship Qualification Badge with 
Rifle Bar.

7.  The applicant's Official Military Personnel File (OMPF) contains a PH Certificate issued by the 91st Evacuation Hospital, dated 10 August 1970, which indicates he was awarded the PH for wounds received in action on 9 August 1970, while serving in the RVN.  It also contains a Report of Medical Examination (SF 88), dated 21 December 1970, which was prepared in conjunction with his separation processing.  This document shows the applicant indicated that since his last physical examination, he had sustained a head injury and malaria.  

8.  On 21 December 1970, the applicant was honorably released from active duty.  The DD Form 214 he was issued at the time confirms he completed a total of 1 year, 9 months, and 3 days of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows he earned the following awards during his active duty tenure:  NDSM, VSM; CIB; ARCOM; and Sharpshooter Marksmanship Qualification Badge with Rifle (M-14 and M-16) Bar. 

9.  On 1 August 2008, a correction to the applicant's separation document 
(DD Form 215) was issued which amended Item 24 by showing his entitlement to 3 bronze service stars with his VSM, and by adding the RVN Campaign Medal with Device (1960), Army Good Conduct Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation Badge, 2 Overseas Service Bars, and the Expert Marksmanship Qualification Badge with Machinegun Bar.

10.  Army Regulation 600-8-22 provides, in pertinent part, that the PH 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, 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:

The applicant’s contention that he was wounded in action and was awarded the PH was carefully considered and found to have merit.  The evidence of record confirms he was wounded in action in the RVN on 9 August 1970, as evidenced by the medical clinical record document provided by the applicant and the PH Certificate on file in his record.  His wound is also supported by an entry on the SF 88 documenting his separation physical examination.  These documents confirm the applicant received lacerations to his scalp and suffered from a concussion as a result of hostile action in the RVN on 9 August 1970, and that he was treated for these wounds at the 91st Evacuation Hospital, where he was awarded the PH on 10 August 1970.  Therefore, it would be appropriate to amend the original Board decision and to add the PH to the applicant's record and separation document at this time. 

BOARD VOTE:

___x____  ___x____  ____x___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20070015959, dated 13 March 2008.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing his entitlement to the Purple Heart for wounds received in action in the Republic of Vietnam on 
9 August 1970; and by providing him a correction to his separation document that includes this award.




      _________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)                                         AR20080005948



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ABCMR Record of Proceedings (cont)                                         AR20080005948


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