IN THE CASE OF:	  

		BOARD DATE:	       20 November 2008

		DOCKET NUMBER:  AR20080014775 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show award of the Purple Heart (PH).

2.  The applicant states that he was presented the PH medal while he was a patient at the 3rd Field Hospital in the Republic of Vietnam (RVN).

3.  The applicant provides his DD Form 214 and a press release in support of his application.

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 record shows that he was inducted into the Army of the United States and entered active duty on 25 March 1969, and was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows he served in the RVN from 30 August 1969 through 7 March 1970.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company D, 6th Battalion, 31st Infantry Regiment, performing duties in MOS 11B as a light weapons infantryman.  Item 38 also shows that he was a patient at the 106th General Hospital from 27 February through 7 March 1979, at which time he was medically evacuated to Walter Reed Army Medical Center, Washington, D.C., where he remained a patient until 21 April 1970.

4.  Item 40 (Wounds) of the applicant’s DA Form 20 is blank, and the PH is not included in the list of awards contained in item 41 (Awards and Decorations).  Item 48 (Date of Audit) shows that the applicant last audited the DA Form 20 on 10 November 1970.

5.  The applicant’s record contains a Report of Medical Examination (SF 88), dated 8 January 1971, which contains the notation for fragmentation wound of right shoulder in item 74 (Summary of Defects).  There is no information regarding how this wound was received on this report.  There are no medical treatment records on file that indicate the applicant was ever wounded or treated by military medical personnel for a wound he received as a result of enemy action.

6.  On 24 March 1971, the applicant was honorably released from active duty (REFRAD) after completing a total of 2 years of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued at the time shows he earned the following awards:  National Defense Service Medal; Vietnam Service Medal; RVN Campaign Medal with Device (1960); Army Good Conduct Medal; Combat Infantryman Badge; Sharpshooter Marksmanship Qualification Badge with Rifle Bar; and 1 Overseas Service Bar.  The PH is not included in the list of awards contained in item 24, and the applicant authenticated the separation document with his signature in item 32 (Signature of Person Being Transferred or Discharged) on the date of his REFRAD.

7.  The applicant provides a news release that indicates that the applicant had a live M-79 grenade round removed from his shoulder in an emergency operation in the hospital parking lot.  The article provides no information regarding how the wound was sustained, and gives no indication that the wound was received as a result of hostile or enemy action.  

8.  During the processing of this case, a member of the Board staff reviewed the Department of the Army Vietnam Casualty Roster.  There was no entry pertaining to the applicant on this roster.  The Awards and Decorations Computer Assisted Retrieval System (ADCARS), which is a web-based index maintained by the Military Awards Branch, U.S. Army Human Resources Command (HRC), that contains award orders issued during the Vietnam era, was also reviewed.  There were no PH orders pertaining to the applicant on this system.

9.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH.  It states, in pertinent part, that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that the wound required treatment by military medical personnel, and a record of this medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was awarded the PH while in the hospital in the RVN was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, in order to support award of the PH, there must be evidence that the wound for which the award is being made was received as a result of enemy action, that it required treatment by military medical personnel, and a record of this treatment must have been made a matter of official record.

3.  The evidence of record does show the applicant was a hospital patient from 27 February through 21 April 1970.  However, there are no medical treatment records on file that indicate this hospitalization was the result of his being wounded in action.  Further, his record is void of any orders or other documents that indicate he was ever awarded the PH by proper authority while serving on active duty and/or of any medical treatment records showing he was ever treated for a combat-related wound while serving in the RVN.  

4.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action.  The PH is not included in the list of earned awards in item 41, and the applicant last audited the DA Form 20 on 10 November 1970, well after he departed the RVN.  In effect, his audit was his verification that the information contained on the record, to include the entries in item 40 and item 41, was correct at that time.

5.  Further, the PH is not included in the list of awards contained in item 24 of the applicant’s DD Form 214, which he authenticated with his signature on the date of his REFRAD.  In effect, his signature was his verification that the information contained on the DD Form 214, to include the list of awards, was correct at the time the separation document was prepared and issued.  There are no PH orders for him on file in the ADCARS maintained by HRC and his name is not included on the Vietnam Casualty Roster, the official Department of the Army list of RVN battle casualties.

6.  The applicant’s record contains an SF 88 that contains entries indicating he suffered a fragmentation wound to his right shoulder, and the applicant provides a news release that indicates he had surgery to remove a live M-79 grenade round from his shoulder.  However, there are no medical records on file or provided by the applicant that indicate this wound was received as a result of enemy action.  If the applicant’s shoulder wound had been received as a result of enemy action, given his hospitalization was a matter of record, and his wound was recorded on his separation medical examination, it is likely his DA Form 20 would have properly documented this fact in item 40.  Further, it would have resulted in his being awarded the PH by proper authority and this award would have been announced in official orders and documented in item 41 of his DA Form 20.  Finally, his name would have been reported and added to the Vietnam Casualty Roster.  Absent any of these actions taking place, it must be presumed the wounding was accidental and did not support award of the PH.

7.  Absent any evidence of record that confirms the applicant was wounded in action or treated for a combat-related wound or injury by military medical personnel while serving in the RVN, or that confirms he was awarded the PH by proper authority while serving on active duty, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  As a result, it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to award the PH at this late date.

8.  The applicant and all others concerned should know that this action related to award of the PH 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

___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)                                         AR20080014775



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ABCMR Record of Proceedings (cont)                                         AR20080014775



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