IN THE CASE OF:	  

		BOARD DATE:	        04 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080006380 


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 a second Purple Heart. 

2.  The applicant essentially states that he received two Purple Hearts during his service in Vietnam, but only one is shown on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  He also states that around mid-May of 1969 while in combat, he was hit by shrapnel and received his first Purple Heart.  He further states that he received his second Purple Heart at Walter Reed General Hospital for a different wound, and that the second Purple Heart is what is shown on his DD Form 214.

3.  The applicant provides his DD Form 214 and a letter, dated 14 March 2008, from the North Carolina Department of Administration 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 was inducted into the Army of the United States on 10 December 1968.  He completed basic and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He departed for the Republic of Vietnam on 20 May 1969, and served with Company D, 2nd Battalion, 60th Infantry Regiment, 9th Infantry Division.  His military records also show that he returned to the continental United States on 28 August 1969, and was placed in a patient status with the Medical Holding Company, Walter Reed General Hospital on that date.  On 16 January 1970, he was honorably retired due to permanent physical disability.  The DD Form 214 that he was issued at the time of his retirement shows that he was awarded the Purple Heart, the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Expert Marksmanship Qualification Badge with M-16 Rifle Bar, and the Sharpshooter Marksmanship Qualification Badge with M-14 Rifle Bar.

3.  The applicant's DD Form 214 shows that he was awarded the Purple Heart, but it does not show that he was awarded the Purple Heart with First Oak Leaf Cluster to signify a second award of the Purple Heart.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not show that he sustained any wounds in action, and item 41 (Awards and Decorations) of this document does not show that he was awarded the Purple Heart.  Although a check of the Vietnam Casualty Roster did in fact show that the applicant was wounded in action on 1 August 1969, there was only one entry for the applicant on this roster.  The applicant's military records did contain a letter, dated 30 April 1971, which essentially transmitted an award of the Purple Heart; however, it appears that the referenced order, namely, Headquarters, 249th General Hospital General Orders Number 43, dated 19 August 1969, related to the applicant's wounding on 1 August 1969.  Additionally, 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, was also conducted to see if any orders awarding the applicant the Purple Heart were present.  However, although there were 21 general orders awarding various awards to Soldiers with the same last name as the applicant, none of these orders awarded the applicant a Purple Heart.

4.  The applicant essentially stated that he received two Purple Hearts during his service in Vietnam, but only one is shown on his DD Form 214.  He also stated that around mid-May of 1969 while in combat, he was hit by shrapnel and received his first Purple Heart.  He further stated that he received his second Purple Heart at Walter Reed General Hospital for a different wound, and that the second Purple Heart is what is shown on his DD Form 214.

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 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 medical officials; and the records of medical treatment must have been made a matter of official Army records.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded a second Purple Heart. 

2.  While the sincerity of the applicant's claim to entitlement to a second award of the Purple Heart is not in question, there is no evidence in his military records, and the applicant failed to provide any evidence which shows that he was wounded or injured a second time as a result of hostile action, that he was treated by medical personnel for a second wound or injury sustained as a result of hostile action, and that this record of a second medical treatment was made a matter of official record.  Regrettably, in view of the foregoing, there is insufficient basis upon which to award the Purple Heart with First Oak Leaf Cluster to the applicant 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)                                         AR20080006380



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ABCMR Record of Proceedings (cont)                                         AR20080006380



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