IN THE CASE OF:
BOARD DATE: 24 July 2008
DOCKET NUMBER: AR20080007737
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 he be awarded the Purple Heart.
2. The applicant states that he was put in for the Purple Heart while in Vietnam but crossed his name off the list. He has since had a change of heart and would like to have the Purple Heart. He relates that he has an 80 percent disability rating from the Department of Veterans Affairs (VA) and a 50 percent Combat Related Special Compensation (CRSC) rating. He has applied for an increase of his CRSC rating to 80 percent.
3. The applicant provides a copy of his retirement DD Form 214 (Report of Separation from Active Duty).
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. On 30 November 1975, the applicant retired with 20 years and 13 days of active duty service.
3. He arrived in Vietnam on 2 November 1968 and served as a platoon sergeant with A Company, 20th Engineer Battalion (Combat). He was promoted to master sergeant (pay grade E-8) on 10 November 1968.
4. He served as the battalion operations sergeant until 6 January 1969 when he became the B Company 1st Sergeant. He was the A Company 1st Sergeant from 1 July until 10 October 1969 when he returned to the United States.
5. The applicant's name does not appear on the Roster of Army Casualties for the Vietnam War.
6. Army Regulation 600-8-22 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.
7. U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided, in pertinent part, for award of the Purple Heart. The regulation stated that authority to award the Purple Heart was delegated to hospital commanders. Further, it directed that all personnel treated and released within 24 hours will be awarded the Purple Heart by the organization to which the individual is assigned. Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam will be awarded the Purple Heart directly by the hospital commander rendering treatment.
DISCUSSION AND CONCLUSIONS:
1. There is no available evidence showing that the applicant was treated for a wound sustained while in action against the enemy or as the result of enemy action.
2. 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) AR20080007737
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