IN THE CASE OF:	  

		BOARD DATE:	       12 August 2008

		DOCKET NUMBER:  AR20080007864 


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, in effect, that he was wounded in the Republic of Vietnam (RVN) and did not receive the Purple Heart.  He contends that his service medical records (SMRs) show that he received a gunshot wound (GSW) and he currently receives compensation from the Department of Veterans Affairs (DVA) for it. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a copy of a DVA 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 15 March 1967, the applicant enlisted in the Regular Army for a period of 3 years.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He attained the grade of specialist four/E-4.  On 22 October 1969, he was released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  On 1 March 1973, he was honorably discharged from the USAR upon completion of his statutory military obligation.

3.  The applicant initially served in the RVN from 25 August – 18 October 1967.  He performed duties as a security guard with the 194th Military Police Company (Physical Security).  The applicant's DA Form 20 (Enlisted Qualification Record) shows that he was medically evacuated to Reynolds Army Hospital, Fort Sill, Oklahoma, on 18 October 1967, due to a fracture of the right tibia.  His available SMRs do not show under what circumstances the applicant fractured his right tibia.  

4.  The applicant served in the RVN again from 20 January – 23 August 1969.  He performed duties as a rifleman with the 194th Military Police Company (Physical Security).  His DA Form 20 shows that on 23 August 1969 he was again medically evacuated to Reynolds Army Hospital at Fort Sill as a patient.  The medical reason for his transfer was unavailable in his official record.  His separation physical, dated 15 October 1969, only shows that he fractured his right tibia. 

5.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 does not show award of the Purple Heart.  Item 40 (Wounds) of his DA Form 20 does not show he received any wounds as a result of hostile action.  

6.  There are no medical records in the available military personnel file that show the applicant sustained wounds as a result of hostile action or that show he was treated for wounds sustained as a result of hostile action.

7.  There are no general orders in the applicant’s records to show he was awarded the Purple Heart.  

8.  The applicant's name does not appear on the Vietnam Casualty Roster.

9.  The applicant provided a copy of a DVA Rating Decision showing that he receives service-connected compensation for the residuals of a GSW to the left foot and for the residuals of a right tibia fracture.  

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.  This regulation further states that there is no time limit on submission of requests for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to award of the Purple Heart.

2.  In order to be entitled to award of the Purple Heart, the applicant must show that he was wounded or injured as a result of hostile action or treated for such wounds.  The available medical evidence shows that the applicant received a fracture to his right tibia in October 1967.  There is no evidence the applicant received a fractured tibia as a result of enemy action.  In August 1969, the applicant was again medically evacuated from the RVN; however, there is no medical evidence available to show the reason for his hospitalization.  His separation physical only notes the fracture of the right tibia and does not show he received a GSW to the left foot.

3.  The applicant provided a copy of his DVA rating decision which shows he is service-connected for the residuals of a GSW to the left foot and the residuals of a right tibia fracture.  This decision does not establish that the applicant's GSW to the left foot was the result of hostile action.  Regrettably, 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.  Given the above, there is insufficient evidence upon which to grant award of the Purple Heart.  

4.  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.








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.



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               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)                                         AR20080007864





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ABCMR Record of Proceedings (cont)                                         AR20080007864



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