IN THE CASE OF:	  

	BOARD DATE:	  24 JULY 2008

	DOCKET NUMBER:  AR20080005960 


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. 

2.  The applicant essentially states that he should have received the Purple Heart, but did not.

3.  The applicant provides a Standard Form 600 (Chronological Record of Medical Care) and two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 16 July 1964.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 631 (Wheeled Vehicle Mechanic), which was later converted into MOS 63B, and also MOS 632 (Tracked Vehicle Mechanic), which was later converted into MOS 63C.  He completed a tour in Germany from February 1965 to February 1967, then departed for the Republic of Vietnam on 10 April 1967, and served with Company B, 125th Signal Battalion, 25th Infantry Division.  He returned to the continental United States on or about 
4 April 1968, and served at Fort Knox, Kentucky until he was honorably released from active duty on 8 November 1968.  The DD Form 214 that he was issued at the time of his release from active duty shows that he was awarded the Good Conduct Medal, the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, and the Expert Marksmanship Qualification Badge with Rifle Bar.

3.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) does not contain any entries that indicate he was wounded or injured as a result of hostile action.  Item 41 (Awards and Decorations) of this same document also does not show that he was awarded the Purple Heart.  There are no orders in his military records awarding him the Purple Heart, and a search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System, a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era, also failed to produce any orders awarding him the Purple Heart.  Additionally, the applicant’s name is not listed on the Vietnam Casualty Roster.   Further, there is no evidence in his military personnel records which shows that he was wounded or injured as a result of hostile action.

4.  The applicant's military records did contain a Standard Form 600, a copy of which the applicant provided, which essentially shows that he ran into barb wire at the 125th Signal Battalion, and had lacerations on his left forearm and abrasions on his stomach.  However, this document makes no mention whatsoever that these injuries were a result of hostile action by the enemy.  

5.  The applicant essentially states that he should have received the Purple Heart, but did not.

6.  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 military 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 military medical personnel; and the record of medical treatment must have been made a matter of official Army records.  A physical lesion is not required, however, the wound for which the award is made must have required treatment by a medical officer and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.  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.

7.  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.

2.  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.

3.  The Standard Form 600 that was a part of the applicant's military records which shows that he was treated by medical personnel on 18 August 1967 after he ran into barb wire in his company area was carefully considered.  However, while the sincerity of the applicant's claim to entitlement to award of the Purple Heart is not questioned, this document does not make any mention whatsoever that these injuries were caused or the result of enemy action.  As a result, there is no evidence in the applicant's military records, and the applicant failed to provide evidence which conclusively shows that he was wounded or injured as a result of hostile action, that he was treated by medical personnel for wounds or injuries sustained as a result of hostile action, and that this medical treatment was made a matter of official record.  In view of the foregoing, there is no basis for awarding him the Purple Heart in this case.




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)                                         AR20080005960



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ABCMR Record of Proceedings (cont)                                         AR20080005960



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