IN THE CASE OF:	  

		BOARD DATE:	  17 September 2008

		DOCKET NUMBER:  AR20080008369 


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, in effect, award of the Purple Heart (PH).

2.  The applicant states, in effect, that he was awarded the PH while serving in the Republic of Vietnam (RVN) after receiving a gunshot wound to his head while under enemy fire.  He further states that he now requests that his award of the PH be added to his separation document (DD Form 214)

3.  The applicant provides his DD Form 214 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 he was inducted into the Army of the United States and entered active duty on 29 August 1967, 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 19 February 1968 through 12 February 1969.  Item 40 (Wounds) is blank, and the PH is not included in the list of awards contained in Item 41 (Awards and Decorations).  The applicant last audited the DA Form 20 on  
21 March 1969.  

4.  The applicant's Official Military Personnel File (OMPF) is void of any orders or other documents showing he was ever recommended for or awarded the PH by proper authority.

5. On 28 August 1969, the applicant was honorably released from active duty REFRAD) after completing 2 years of active military service.  The DD Form 214 he was issued shows he earned the following awards during his active duty tenure:  National Defense Service Medal; Vietnam Service Medal with 1 Bronze Service Star; Vietnam Campaign Medal with 1960 Device; Army Commendation Medal; Combat Infantryman Badge; and the Air Medal.  The PH is not included in the list of awards contained on his final DD Form 214, which he authenticated with his signature on the date of separation from active duty for retirement.  

6.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant's name was not included on this casualty list.  The staff member also reviewed the 
DA Awards and Decorations Computer Assisted Retrieval System (ADCARS), which contains award orders issued during the Vietnam Era.  There were no PH orders pertaining to the applicant on file.

7.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to award a 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.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of entitlement to the PH based on a gunshot wound he received to his head in the RVN was carefully considered.  However, by regulation, in order to award the PH it is necessary to establish 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.

2.  There are no orders, or any other documents on file in the applicant’s OMPF that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty.  The record is also void of any documents that show he was ever wounded in action, or that he was ever treated for a combat related wound by military medical personnel during his active duty tenure.  

3.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action, and the PH is not included in the list of awards contained in Item 41.  The applicant last audited his DA Form 20 on 21 March 1969, after he completed his RVN tour of duty.  In effect, this audit was his verification that the information contained on the record, to include the Item 40 and Item 41 entries, were correct at that time.  The PH is also not included in the list of awards contained on his DD form 214, which he authenticated with his signature on the date of his separation.  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 document was prepared and issued.  

4.  Furthermore, the applicant's name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties and there are no PH orders for him on file on the ADCARS.  Absent any evidence that the applicant's gunshot wound was a result of enemy action, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  

5.  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.   

6.  The applicant and all others concerned should 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

___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)                                         AR20080008369



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080008369



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1