IN THE CASE OF:	  

		BOARD DATE:	        03 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080008614 


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 his military records be corrected to show the award of the Purple Heart. 

2.  The applicant essentially states that he was awarded the Purple Heart, but no paperwork followed, and that the Purple Heart was not listed on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  He also states, in effect, that he did not realize the omission until he filed a Department of Veterans Affairs (DVA) claim.  He further states that his military personnel records and medical records will verify treatment for his wound.

3.  The applicant provides a letter, dated 25 April 2008, from the New York State Division of Veterans Affairs 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 was inducted into the Army of the United States on 19 June 1969.  He completed basic and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He departed for the Republic of Vietnam on 
13 November 1969, and initially served with Company A, 1st Battalion, 2nd Infantry Regiment, 1st Infantry Division.  In March 1970, he was reassigned as a student at the Americal Combat Center, then was reassigned to 2nd Battalion, 1st Infantry Regiment, 196th Infantry Brigade.  He returned to the continental United States on 1 November 1970, and was assigned to Fort Riley, Kansas until he was honorably released from active duty on 18 June 1971.  The DD Form 214 that he was issued at the time of his release from active duty shows that he was awarded the Bronze Star Medal, the Army Commendation Medal with "V" (for Valor) Device and Second Oak Leaf Cluster, the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with 1960 Device, the Combat Infantryman Badge, the Expert Marksmanship Qualification Badge with M-16 Rifle Bar, the First Class Gunner Marksmanship Badge with Machinegun Bar, and the Marksman Marksmanship Qualification Badge with M-14 Rifle Bar.

3.  The applicant's DD Form 214 does not show that he was awarded the Purple Heart.  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, and his separation physical did not reveal that he sustained any wounds or injuries as a result of hostile action.

4.  The applicant essentially stated that he was awarded the Purple Heart, but no paperwork followed, and that the Purple Heart was not listed on his DD Form 214.  He also stated, in effect, that he did not realize the omission until he filed a DVA claim.  He further stated that his military personnel records and medical records will verify treatment for his wound.

5.  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.  

6.  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:

1.  The applicant contends that his military records should be corrected to show the award of the Purple Heart.

2.  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.  Regrettably, in view of the foregoing, there is insufficient basis upon which to correct his military records to show the award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  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 the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.




      ___        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)                                         AR20080008614



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ABCMR Record of Proceedings (cont)                                         AR20080008614



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