IN THE CASE OF:
BOARD DATE: 7 August 2008
DOCKET NUMBER: AR20080007421
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 that his military personnel and medical records be corrected to include documents which describe the shrapnel wounds to both legs he incurred while conducting combat operations in Vietnam in August 1968.
2. The applicant states that his commander failed to submit an accurate after action review, the company medic lacked the resources to complete the appropriate forms to document his wounds, and his devotion to duty and concern for other wounded comrades which resulted in him not being medically evacuated should not be held against him.
3. The applicant provides his separation document (DD Form 214); a memorandum from an Army National Guard instructor pilot; excerpts from his military records; a letter the applicant sent to an unknown recipient on 30 May 1990; a letter from the applicant to his elected representative dated 12 April 1993; a witness statement dated 25 January 1991; and a letter from a retired master sergeant dated 24 April 1998.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records show that he was inducted and entered active duty on 28 November 1967. He was awarded the military occupational specialty of radio mechanic and served in Vietnam from May 1968 to May 1969.
3. He was honorably released from active duty in pay grade E-5 on 26 November 1969.
4. The applicants records do not contain any indication that he was wounded or that he was awarded the Purple Heart for wounds.
5. The applicants military records show the Board denied his request for award of the Purple Heart on 2 September 1992. The applicant has provided the same witness statement that he submitted in his previous request for award of the Purple Heart. The previous Board found that neither the applicants personnel nor medical records contained any indication that he was wounded, and the witness statement was insufficient to grant his request because he was not an eyewitness to the wounding or to the treatment by the company medic.
DISCUSSION AND CONCLUSIONS:
1. The only evidence provided by the applicant to show he was wounded is the witness statement. That same witness statement was previously considered and found to be insufficient to warrant correcting the applicants records to show he was awarded the Purple Heart.
2. The applicants witness statement is insufficient to grant his current request just as it was insufficient to grant his previous request. The witness was not an eyewitness to the wounding or to the treatment by the company medic.
3. It would be inappropriate to create medical records to show the applicant was treated for wounds without clear knowledge that he was wounded, how he was wounded, the exact nature of the wounds, and the treatment provided.
4. While it is unfortunate if standing operating procedures were not followed and this omission resulted in the applicants wound not being recorded in his military records, it would not form the basis to grant the applicants request in and of itself.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ ___X____ ___X___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action 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.
_______ _ 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.
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