IN THE CASE OF:	  

	BOARD DATE:	  8 July 2008

	DOCKET NUMBER:  AR20080006673


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 never reported being injured by shrapnel on 19 August 1969.  He states that he removed the shrapnel himself and was unaware that more shrapnel was present until he had x-rays taken of his left knee on 19 March 2007.

3.  The applicant provides a copy of Department of Veterans Affairs (VA) Letter, dated 5 March 2008 and a VA Rating Decision, dated 23 March 2006, 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 record shows he enlisted in the Regular Army and entered active duty on 11 July 1966.  He was trained, awarded and served in military occupational specialty (MOS) 63H (Engine and Power Train Repairman).

3.  The applicant's Enlisted Qualification Record (DA Form 20) includes an entry in Item 31 (Foreign Service) that shows he served in the Republic of Vietnam (RVN) from 26 August 1967 to 28 August 1968.  Item 40 (Wounds) is blank.

4.  The applicant's record is void of any orders, or other documents that indicate he was ever recommended for, or awarded the PH.  It also contains no medical treatment records that indicate he was ever treated for a combat-related wound.

5.  On 10 July 1969, the applicant was honorably released from active duty (REFRAD) after completing 3 years of active military service.  The DD Form 214 issued to him on the date of his separation shows he earned the following awards during his active duty tenure:  National Defense Service Medal; Vietnam Service Medal; Republic of Vietnam (RVN) Campaign Medal with Device 1960; Expert Marksmanship Qualification Badge with Rifle Bar; and 2 Overseas Service Bars.  The applicant authenticated his separation 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 VA Rating Decision, dated 28 February 2008, which indicates that he was assigned a service-connected 10 percent evaluation for shrapnel wound to his left leg. 

7.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant's name is not included on this casualty list.  

8.  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 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, the awards regulation stipulates that 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 claim of entitlement to the PH and the supporting documents he provided 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, and that the wound required treatment by military medical personnel.

2.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action.  His MPRJ is void of any orders, or documents that show he was ever recommended for, or awarded the PH by proper authority while serving on active duty.  There are no medical treatment records on file that indicate he was ever treated for a combat-related wound or injury.  Further, the PH is not included in the list of awards contained on his separation document, which he authenticated with his signature on the date of his separation.  In effect, his signature was his verification that the information contained on the separation document, to include the list of awards, was correct at the time the DD Form 214 was prepared and issued.  In addition, his name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  

3.  Notwithstanding the VA documents provided, absent any evidence of record showing that the applicant was wounded as a result of enemy action, or that he was ever treated for a combat-related wound or injury by military medical personnel while serving in the RVN, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  As a result, it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to support award of the PH in this case. 

4.  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.

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.


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)                                         AR20080006673



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ABCMR Record of Proceedings (cont)                                         AR20080006673



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