IN THE CASE OF:	  

		BOARD DATE:	        02 OCTOBER 2008

		DOCKET NUMBER:  AR20080008507 


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, that he be awarded the Purple Heart. 

2.  The applicant states, in effect, that he should have received the Purple Heart for an injury he sustained to his chest which caused him to be hospitalized for 
12 days.  As a result of the injury, he eventually developed a tumor on his chest and needed surgery.  A mortar box slammed into his chest when a rocket hit their position.  

3.  The applicant provides no additional evidence in support of this 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 military records show that he enlisted in the Regular Army on 22 March 1971.  He completed basic and advanced individual training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).  He departed for the Republic of Vietnam on 21 August 1971, and was initially assigned to Company E, 1st Battalion, 20th Infantry Regiment on 7 September 1971.  On 18 October 1971, he was reassigned to Company E, 1st Battalion, 46th Infantry Regiment.  

3.  On 9 January 1972, a bar to reenlistment was approved against the applicant, due to his conduct.

4.  The applicant's military records appear to show that he departed on ordinary leave to the continental United States on or about 1 January 1972.  However, on 22 January 1972, the applicant's unit in Vietnam submitted a DA Form 268 (Report for Suspension of Favorable Personnel Actions) because the applicant failed to return from ordinary leave to the continental United States on 
21 January 1972.  Although the applicant's duty status from 22 January to 
7 March 1972 is unclear, it appears that he was attached to a unit at Fort Devens, Massachusetts on 8 March 1972, and formally assigned to a unit on Fort Devens on 20 June 1972.  

5.  On 8 January 1973, he was honorably released from active duty.  The 
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that he was issued shows he was awarded the National Defense Service Medal, the Republic of Vietnam Campaign Medal, and the Expert Marksmanship Qualification Badge with Rifle Bar.  The applicant's DD Form 214 does not show that he was awarded the Purple Heart. 

6.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) does not contain any entries that indicate he was wounded or injured as a result of hostile action.  Item 41 (Awards and Decorations) of this same document also does not show that he was awarded the Purple Heart.  There are no orders in his military records awarding him the Purple Heart, and a search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System, a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era, also failed to produce any orders awarding him the Purple Heart.  Additionally, the applicant’s name is not listed on the Vietnam Casualty Roster.   Further, there is no evidence in his military personnel records which shows that he was wounded or injured as a result of hostile action.


7.  The applicant essentially stated that he should have received the Purple Heart for an injury he sustained to his chest which caused him to be hospitalized for 
12 days.  A tumor developed on his chest as a result of the injury and he needed surgery.  The injury was caused by a mortar box slamming into his chest when a rocket hit their position.  

8.  Army Regulation 600-8-22 (Military Awards) 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 been treated by military medical personnel, and the medical treatment must have been made a matter of official records.  Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire; the wound or injury must have required treatment by military medical personnel; and the record of medical treatment must have been made a matter of official Army records.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

DISCUSSION AND CONCLUSIONS:

The applicant’s contention that he should be awarded the Purple Heart, due to
an injury he sustained to his chest was considered.  While the sincerity of the applicant's claim to entitlement to award of the Purple Heart is not questioned, there is no evidence in the applicant's military records, and the applicant failed to provide any evidence which shows that he was wounded or injured as a result of hostile action, that he was treated by medical personnel for wounds or injuries sustained as a result of hostile action, and that this medical treatment was made a matter of official record.  In view of the foregoing, there is no basis for awarding the Purple Heart to the applicant in this case.








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.




      ___        XXX                ___
                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)                                         AR20080008507



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ABCMR Record of Proceedings (cont)                                         AR20080008507



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