IN THE CASE OF:	  

		BOARD DATE:	        7 August 2008

		DOCKET NUMBER:  AR20080006509 


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 award of the Purple Heart.

2.  The applicant states that he is currently service-connected for scars due to shrapnel wounds to his middle and upper back.  He provided (with his claim for disability compensation) a buddy statement from a fellow Soldier, who verified the incident involving a rocket-propelled grenade which hit the boat they were on and caused his injuries.

3.  The applicant provides a Department of Veterans Affairs (VA) Rating Decision, dated 25 July 2007.

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 was inducted into the Army on 11 July 1968.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 61C (Marine Engineer).

3.  The applicant arrived in Vietnam and was assigned to the 1097th Transportation Company on 26 January 1969.  He was reassigned to the 544th Transportation Company on 16 July 1969.  He departed Vietnam on 10 February 1970.

4.  The applicant completed a separation physical examination on 11 February 1970.  In item 33 (Have you ever had any illness or injury other than those already noted), item 34 (Have you consulted or been treated by clinics, physicians, healers, or other practictioners within the past 5 years), and item     35 (Have you treated yourself for illnesses other than minor colds) of his Standard Form 89 (Report of Medical History), the applicant checked the “NO” block.  No injuries or illnesses were noted on his Standard Form 89 or his Standard Form 88 (Report of Medical Examination).

5.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) does not show he was wounded.  His name is not listed on the Vietnam Casualty Roster.

6.  The applicant was released from active duty on 11 February 1970.  His DD Form 214 (Armed Forces of the Untied States Report of Transfer or Discharge) shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Army Commendation Medal, and the Army Good Conduct Medal.

7.  The applicant provided a VA Rating Decision, dated 25 July 2007.  This Rating Decision noted that he had initially been denied service-connection for scars due to shrapnel wounds of the middle and upper back in September 2006. It noted that available service medical records did not document treatment for shrapnel wounds.  His separation examination did not document any residual scar(s) of the middle and upper back or complaints regarding his back as related to shrapnel wounds.  The applicant had provided a statement from Mr. Jerry H___.  In his letter, Mr. H___ stated he knew of the incident involving a rocket-propelled grenade which hit the boat the applicant was on.  Mr. H___ stated the 

applicant received shrapnel to the middle and upper back as a result of the explosion.  Although Mr. H___ did not actually see the accident, he witnessed the applicant being treated for wounds along with two other Soldiers.

8.  The VA Rating Decision noted that the examiner indicated the applicant had eleven stable, non-tender scars of the middle and upper back and assumed the scars were caused by shrapnel.  Service-connection for scars due to shrapnel wounds of the middle and upper back was granted with an evaluation of zero percent effective 10 August 2006.

9.  Army Regulation 600-8-22 (Military Awards) states 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.  The applicant’s evidence has been carefully considered.

2.  It is noted that the applicant provided a buddy statement with his VA claim; however, that statement was made more than 35 years after the applicant was in Vietnam.  He himself did not indicate on his Standard Form 89, only days after he left Vietnam and even if only by checking the “YES” block, that he had ever had any injury other than those already noted or that he had been treated by physicians, healers, or other practitioners within the past 5 years.  No other injuries or illnesses were noted on either his Standard Form 89 or his Standard Form 88.

3.  Regrettably, the evidence the applicant provides with his Board application is insufficient to overcome the contemporaneous evidence of record.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx____  ___xx___  __xx____  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.



      ________xxxx__________
               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)                                         AR20080006509



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ABCMR Record of Proceedings (cont)                                         AR20080006509



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