IN THE CASE OF:	  

		BOARD DATE:	        06 NOVEMBER 2008

		DOCKET NUMBER:  AR20080006406 


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.

2.  The applicant states that in 1970, while he was in Quantri, South Vietnam, he was struck in the left side of his lower back by a small piece of metal from a rocket propelled grenade that went off beside his tank during a fire fight.  He states that he was treated by his company medic in the field and was not flown back to his base camp.  He states the company medic told him he was putting him in for the Purple Heart; however, he never received it.  He states that he has not put in for any military benefits in 37 years so he did not realize the importance of receiving the Purple Heart until now.  He states that he now has a heart problem and he is applying for benefits through the Department of Veterans Affairs.  He states that he is only trying to find out if there was any record of his injuries submitted.  He concludes by stating that he has been able to locate one person that was also wounded in the fire fight and that this individual recalls what happened.

3.  The applicant provides in support of his application, a self-authored statement which provides his contentions; and an undated, self-authored statement repeating his contentions.

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.  On 5 March 1969, the applicant enlisted in the Army in Atlanta, Georgia, for 3 years, in the pay grade of E-1.  He successfully completed his training as an armor crewman.  He was transferred to Vietnam on 10 April 1970 and he was assigned to Company C, 1st Battalion, 77th Infantry Regiment, 5th Infantry Division.

3.  A review of the applicant’s records does not show that he was wounded as a result of hostile action while he was in Vietnam.

4.  The applicant returned to the Continental United States on 17 March 1971 and he was assigned to Company B, 3rd Battalion School Brigade, Fort Knox, Kentucky.

5.  The applicant was honorably released from active duty (REFRAD) on 27 December 1971, due to early separation for other good and sufficient reason, as determined by Headquarters, Department of the Army.  He was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement) to complete his Reserve obligation.  The DD Form 214 that he was furnished at the time of his REFRAD shows that he was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Bronze Star Medal, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation with bronze service star.

6.  A review of the Vietnam Casualty Roster does not show that the applicant was wounded as a result of hostile action while he was in the Army.

7.  During the processing of this case, a member for the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the United States Army Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any Purple Heart orders on file for the applicant.

8.  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 required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  A review of the available records does not show that the applicant was wounded as a result of hostile action while he was in the Army.

2.  The Vietnam Casualty Roster does not contain his name to show he was wounded as a result of hostile action while he was in the Army.

3.  The ADCARS also does not contain any orders to show he was awarded the Purple Heart.

4.  The applicant’s contentions have been noted.  However, he has provided no evidence that shows that he was wounded as a result of hostile action in July 1971 or August 1971.  In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

5.  In order to justify correction of a military record the applicant must show, 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.

6.  In view of the foregoing, there is no basis for granting the applicants request.

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.



      ________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)                                         AR20080006406



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080006406



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1