IN THE CASE OF:	  

		BOARD DATE:	        21 AUGUST 2008

		DOCKET NUMBER:  AR20080007407 


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 to supposed to receive the Purple Heart; however, it was not recorded on his Report of Transfer or Discharge (DD Form 214).  He states that he never really accepted the Purple Heart because he believed some day he would be a helicopter pilot and remain in the Army.  He states that after 2 years and 3 months of serving his country he failed what was his biggest disappointment ever, which was his hearing test for flight school.  He states that he was discharged shortly thereafter and that when he was being discharged, he was asked again to accept the Purple Heart.  He states that he was very proud to be a Soldier and that he was not going to accept defeat.  He states that now, years later, he is rated 100 percent disabled due to a combat related injury.  He states that he suffers from hearing loss, post traumatic stress disorder or ringing of the ears that he hears every day so bad that it just screams at you.  He states that he also has shrapnel wounds.  He goes on to state that he was told to swallow his pride and to put in for his Purple Hearts.  He states that two of his injuries were treated by field medics and that he was medically evacuated for his back injury.

3.  The applicant provides in support of his application a statement regarding his injuries; a copy of General Orders Number 2490 awarding him the Army Commendation Medal; a copy of a Department of Veterans Affairs (VA) Rating 



Decision Continuation Sheet; a copy of Clinical Record notes; a copy of a Reenlistment Data Card (DA Form 1315); a copy of a VA Report of Medical Examination for Disability Evaluation; and a copy of his VA Rating Decision.

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.  On 12 February 1968, the applicant enlisted in the Army in Pittsburgh, Pennsylvania, for 3 years, in the pay grade of E-1.  He successfully completed his training as a combat engineer.  He was transferred to Vietnam on 20 June 1968. 

3.  A review of the available records does not show that the applicant was wounded as a result of hostile action while he was in Vietnam.

4.  The applicant returned to the Continental United States on 20 September 1970.  

5.  After completing 2 years, 7 months and 12 days of total active service, the applicant was honorably released from active duty (REFRAD) on 23 September 1970, under the provisions of Army Regulation 635-200, chapter 5, due to early separation of overseas returnee.  He was transferred to the United States Army Reserve (USAR) Control Group to complete his Reserve obligation.

6.  The DD Form 214 that the applicant was furnished at the time of his REFRAD shows that he was awarded the National Defense Service Medal, the Republic of Vietnam Campaign w/five Oak Leaf Clusters, the Vietnam Service Medal, the Republic of Vietnam Gallantry Cross w/Palm Unit Citation, the Good Conduct Medal, the Bronze Star Medal and the Air Medal.



7.  A review of the Vietnam Casualty Listing does not show that the applicant was wounded as a result of hostile action while he was in the Army.

8.  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.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must show 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.

2.  The applicant's contentions and the documentation that he submitted have been noted.  However, although his documents show that he currently has injuries, there is no evidence in the available records, nor has the applicant submitted any evidence to show that he was wounded as a result of hostile action while he was in the Army.

3.  The applicant's contention regarding his VA disability rating has also been noted.  However, a service connected disability rating by the VA does not constitute award of the Purple Heart.

4.  Additionally, a review of the Vietnam Casualty Listing does not show that the applicant was wounded as a result of hostile action while he was in the Army and, in the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080007407



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ABCMR Record of Proceedings (cont)                                         AR20080007407



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