IN THE CASE OF:	  

	BOARD DATE:	  8 July 2008

	DOCKET NUMBER:  AR20080007234 


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 was wounded in the Republic of Vietnam, but was not awarded the Purple Heart due to the tactical situation at the time.  He believes it is an overdue award, given that his neck was broken and that he continues to suffer from Post Traumatic Stress Disorder (PTSD).

3.  The applicant provided a self-authored statement, dated 7 April 2008; copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 2 October 1967; and a copy of memorandum from the applicant’s former company commander, dated 12 July 1973.

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 records show that he enlisted in the Kentucky Army National Guard (KYARNG) on 7 December 1959, and was subsequently ordered to active duty on 12 June 1960.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 140.00 (Basic Field Artillery Basic).  He was honorably released from active duty back to the KYARNG on 11 December 1960.

3.  The applicant’s records also show that he reenlisted in the KYARNG for a period of 3 years on 4 January 1961.  He was honorably discharged on 25 September 1961 and subsequently reenlisted in the Regular Army for a period of 6 years on 26 September 1961.  The highest grade he attained during his military service was private first class (PFC)/E-3.  He was honorably discharged on 2 October 1967.

4.  The applicant’s records further show that he served in the Republic of Vietnam.  He was assigned to B Company, 4th Battalion, 42nd Field Artillery, 4th Infantry Division.  

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 2 October 1967, shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), and the Expert Marksmanship Qualification Badge with Rifle Bar.  Item 24 of his DD Form 214 does not list award of the Purple Heart.

6.  The applicant’s DA Form 20 (Enlisted Qualification Record) is not available for review with this case.

7.  There are no General Orders in the applicant's records that show he was awarded the Purple Heart and the applicant’s name is not shown on the Vietnam Casualty Roster.

8.  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.



9.  The applicant's records contain a DA Form 3082-R (Statement of Medical Condition), dated 2 October 1967.  This form shows that the applicant underwent a separation physical examination on 29 September 1967.  The applicant stated on this form that “there has been no change in my medical condition.”

10.  There is no indication in the applicant’s available medical records that he was injured or wounded as a result of hostile action or that he was treated by military medical personnel for such wounds or injuries. 

11.  In his self-authored statement, dated 7 April 2008, the applicant stated that he served with the 42nd Artillery Battalion in May 1967 in the Republic of Vietnam, in support of the 4th Infantry Division.  In one instance, a helicopter brought in replacements, but over half of them were killed.  For days, his unit was without water or food, and every time a helicopter brought them supplies, it was shot at. 

12.  In a statement submitted by the applicant’s former company commander, dated 12 July 1973, the former commander of B Company, 4th Battalion, 42nd Field Artillery, states that he remembers the applicant was involved in an accident.  Miscellaneous equipment was being lifted in a sling under a helicopter when a strap litter broke or became disengaged, allowing the contents to fall back on the ground.  The applicant, who had been rigging the load, was struck by the falling equipment and was subsequently evacuated by medical helicopter for treatment.

13.  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, and the medical treatment must have been made a matter of official record by medical personnel. This regulation also provides that there are no time limitations for requests for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to correction of his records to show award of the Purple Heart.  

2.  There are no general orders that show the applicant was awarded the Purple Heart.  There is no evidence in his records that shows that he was wounded or injured as a result of hostile action or treated for such wounds.  The applicant's name is not listed on the Vietnam Casualty Roster.  In the absence of evidence 
that the applicant was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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)                                         AR20080007234



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080007234



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1