IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080006238 


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) with 1st oak leaf cluster.   

2.  The applicant states his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) does not show his awards of the PH.

3.  The applicant provides a copy a PH certificate for wounds received on
31 August 1969, dated 12 September 1969; a copy of a PH, with first oak leaf cluster certificate for wounds received on 13 September 1969, dated
15 September 1969; and a copy of his DD Form 214, 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 military record is not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant's available record shows that he enlisted in the Regular Army on 23 April 1968 for a period of 3 years.  He was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman), and specialist four (SP4) was the highest rank he attained while serving on active duty.

4.  The applicant's Military Personnel Records Jacket (MPRJ) 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 MPRJ 
also contains no medical treatment records that indicate he was ever treated for a combat-related wound or injury while serving in the Republic of Vietnam (RVN). The applicant’s available military record indicates that on 6 March 1970, he appeared before a physical evaluation board (PEB); however, the specific circumstances are not on file.  

5.  On 31 March 1970, the applicant was permanently retired by reason of physical disability.  He completed a total of 1 year, 11 months, and 8 days of active military service.  The separation document (DD Form 214) he was issued at the time shows he earned the following awards: the National Defense Service Medal, the Vietnam Service Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

6.  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.  

7.  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 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 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.  The applicant's MPRJ 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.  Although, he was honorably retired by reason of physical disability there is no evidence that the disability was received as a result of enemy action.  It is also noted that the applicant did not discuss his disability retirement.  His available record contains no medical treatment records that indicate he was ever treated for a combat-related wound while serving in the RVN.  Furthermore, the PH is not included in the list of awards contained on his 
DD Form 214.  

3.  Lastly, the applicant's name is not included on the Vietnam Casualty Roster, the official 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 or the PH with first oak leaf clusters has not been satisfied in this case.  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.  

4.  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.   

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)                                         AR20080006238



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ABCMR Record of Proceedings (cont)                                         AR20080006238



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