IN THE CASE OF:	  

		BOARD DATE:	  7 August 2008

		DOCKET NUMBER:  AR20080006641 


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).

2.  The applicant states, in effect, that he was wounded in action (WIA) in the Republic of Vietnam (RVN) on 31 January 1968.  He states that his unit failed to report him as a casualty, but after 38 years, he has finally located an eyewitness who can attest to his being WIA.  He requests this witness statement be accepted as the proof needed to award him the PH.

3.  The applicant provides self-authored statements, witness statement, Disabled American Veterans (DAV) Letter, and Department of Veteran Affairs (VA) Rating Decision 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 records show he enlisted in the Regular Army and entered active duty on 29 August 1966.  He successfully completed basic training and advanced individual training (AIT) at Fort Dix, New Jersey.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic).

3.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he served in the RVN from 10 December 1967 through 9 December 1968.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company D, 709th Maintenance Battalion, 9th Infantry Division.  Item 40 (Wounds) is blank, and the PH is not included in the list of awards contained in Item 41 (Awards and Decorations).  Item 41 does shows he earned the following awards: during his active duty tenure:  National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), Army Good Conduct Medal, RVN Campaign Medal (RVNCM) with Device (1960), RVN Unit Citation (sic), and Expert Marksmanship Qualification Badge with Rifle Bar.  

4.  The applicant’s Official Military Personnel File (OMPF) contains no orders or other documents that indicate the applicant was ever WIA, or that he was ever recommended for or awarded the PH by proper authority while serving on active duty. 

5.  On 1 April 1969, the applicant was honorably released from active duty (REFRAD).  The DD Form 214 he was issued at that time shows he completed a total of 2 years, 7 months, and 3 days of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) does not include the PH in the list of awards entered, and the applicant authenticated this document with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his REFRAD.

6.  The applicant provides a witness statement from an individual who states, in effect, that while he received treatment for his own wounds sustained in combat, he witnessed the applicant bleeding from his ear and receiving treatment for that ear and for a foot injury.  He also states that he remembers the applicant because the two of them bunked together.

7.  The applicant provides a VA rating decision that indicates, in pertinent part, he was granted service connection for the following conditions incurred in Vietnam:  Post Traumatic Stress Disorder (50%); Tinnitus (10%); and Bilateral High Frequency Sensorineural Hearing Loss (0%).  

8.  In connection with the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The roster did not contain an entry pertaining to the applicant.  

9.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that the PH is awarded to any member who has been wounded or killed in action. A wound is defined as an injury to any part of the body from an outside force or agent sustained under conditions defined by this regulation.  In order to support awarding a member the PH, it is necessary to establish that the wound, for which the award is being made, required treatment by a medical officer.  This treatment must be supported by records of medical treatment for the wound or injury received in action, and must have been made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he is entitled to the PH for his wounds sustained in the RVN were carefully considered.  However, by regulation, in order to support award of the PH, it is necessary to establish that the wound, for which the award is being made, was received as a direct result of, or was caused by enemy action; that the wound required treatment by military medical personnel; and that a record of this medical treatment was made a matter of official record.

2.  The evidence of record provides no indication that the applicant was ever WIA while serving in the RVN, or that shows he was ever recommended for or awarded the PH by proper authority while serving on active duty.  Item 40 of his DA Form 20 is blank, which indicates he was never WIA and his record is void of any orders or other documents indicating he was ever recommended for or awarded the PH while serving on active duty.  It also contains no medical treatment records indicating he was ever treated for a combat-related wound or injury during his active duty tenure.  

3.  In addition, the PH is also not listed on the applicant's DD Form 214, which he authenticated with his signature on the date of his REFRAD.  In effect, his signature was his verification that the information it contained, to include the list of awards, was correct at the time the DD Form 214 was prepared and issued. Finally, his name is not included on the Vietnam Casualty Roster, the official 
DA list of RVN battle casualties.  As a result, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case. 


4.  The witness statement provided by the applicant indicates the witness saw the applicant being treated for an ear and foot injuries; however, this individual does no indicate he witnessed the applicant being wounded as a result of enemy action.  As a result, absent any evidence of record confirming the applicant's wounds were received as a result of enemy action, and/or that verifies the medical treatment referred to in the witness statement, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  

5.  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.  The applicant and all others concerned should know that this action related to award of the PH 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.

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)                                         AR20080006641



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ABCMR Record of Proceedings (cont)                                         AR20080006641


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