IN THE CASE OF:	  

		BOARD DATE:	        7 August 2008

		DOCKET NUMBER:  AR20080007041 


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 his records indicate that his ears were damaged at Cu Chi.  He alleges that his ears were actually damaged from incoming fire rockets or mortars during the same battle.  His ears were also damaged at the Battle of Dau Tieng as indicated in the letter from a journalist.  

3.  The applicant provides a copy of a letter from a journalist; his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); and a Clinical Record.  

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 enlisted in the Regular Army on 21 April 1968.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty 64A (light vehicle driver).  He was assigned to Vietnam on 1 November 1968 with Company B, 25th Supply and Transport Battalion, 25th Infantry Division.  His highest grade held was specialist four, E-4.  

3.  There are no orders in the applicant's personnel records which show he was awarded the Purple Heart.  His DA Form 20 (Enlisted Qualification Record) does not list any wounds as a result of hostile action in item 40 (Wounds).  His name is not included on the Vietnam Casualty Roster.  

4.  A Clinical Record shows the applicant had a permanent H3 profile and had been exposed to artillery fire.  This document also indicates he had hearing loss.  
5.  The applicant departed Vietnam on 30 August 1969 and was reassigned 
to Fort Carson, Colorado with Headquarters and Headquarters Company, 1st Battalion, 19th Artillery as an ammunition handler.  

6.  The applicant was evaluated by a Medical Evaluation Board (MEB) on 10 March 1971.  The MEB proceedings listed his medical conditions as connective tissue disorder with fever, arthritis, and skin rash; and partial deafness.  He was referred to a Physical Evaluation Board (PEB).  

7.  On 26 March 1971, an informal PEB evaluated the applicant and diagnosed him as having connective tissue disorder with fever, arthritis and skin rash; and bilateral hearing impairment.  The PEB determined that the applicant was physically unfit for duty and recommended a combined rating of 30 percent and that he be placed on the temporary disability retired list (TDRL) with reexamination during September 1972.  The applicant concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.  

8.  On 22 April 1971, the applicant was retired from active duty by reason of temporary disability.  

9.  His DD Form 214 does not show entitlement to the Purple Heart.  

10.  The applicant provided a letter from a former fellow Soldier, who was a combat correspondent for the 3rd Brigade, 25th Infantry Division at Dau Tieng, South Vietnam from August 1968 to August 1969.  His job was to record the events that the units encountered during those hostile times.  He described an 
incident which occurred on 23 February 1969 at the base camp in Dau Tieng.  He stated that the area where the applicant was located received major hits from enemy rockets, rocket-propelled grenades (RPGs), and satchel charges.  The applicant and his group were sent to the supply and transit yard at Dau Tieng to protect their equipment and supplies.  The enemy was already there burning their supplies.  After the battle, the applicant and his men were sent back to the perimeter.  The combat correspondent stated that the applicant was twice knocked unconscious from concussions of two 122 millimeters enemy rockets.  He also stated that the applicant and his buddies fought hard until dawn to protect their part of the perimeter.  

11.  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.  Paragraph 2-8b(2) states that for the purpose of considering an award of the Purple Heart, a “wound” is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.  The regulation states that the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.  

DISCUSSION AND CONCLUSIONS:

1.  There are no orders which authorize award of the Purple Heart to the applicant.  His name is not listed on the Vietnam Casualty Roster.

2.  By regulation, in order to award the Purple Heart it is necessary to establish that a Soldier was wounded in action, that the wound required treatment by medical personnel, and the treatment must have been made a matter of official record.  

3.  Although the 26 March 1971 PEB indicates that the applicant was diagnosed as having bilateral hearing impairment, there are no military medical documents available to the Board which verifies he was wounded or injured as a result of hostile action or treated by medical personnel.  Therefore, there is insufficient evidence on which to base award of the Purple Heart in this case.

4.  The letter from the combat correspondent was carefully reviewed. Regrettably, this document alone is not sufficient to meet the regulatory burden of proof necessary to support award of the Purple Heart in this case.  

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)                                         AR20080007041



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ABCMR Record of Proceedings (cont)                                         AR20080007041



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