IN THE CASE OF:	    

		BOARD DATE:	        20 November 2008

		DOCKET NUMBER:  AR20080009075 


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 correction of her husband's records, a deceased former service member (FSM), to show award of the Purple Heart.

2.  The applicant states, in effect, that her late husband's separation certificate should show award of a Purple Heart.  The applicant desires to include award of the Purple Heart on her deceased husband's grave marker. 

3.  The applicant provides a copy of the FSM's Certificate of Death and a copy of their marriage certificate 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 FSM's record shows that he was inducted into the Army of the United States and entered active duty on 12 May 1967.  He completed basic and advanced individual training and was awarded the military occupational specialty 11H (Infantry Direct Fire Crewman).  The highest rank he attained while serving on active duty was specialist four/pay grade E-4.

3.  Item 31 (Foreign Service) of the FSM's DA Form 20 (Enlisted Qualification Record) for his period of service ending on 9 May 1969 shows he served in the Republic of Vietnam during the period 1 December 1967 through 30 November 1967.  Item 38 (Record of Assignments) of the FSM's DA Form 20 shows that during his tour of duty in the Republic of Vietnam he was assigned to Company B, 4th Battalion (Airborne), 503d Infantry, 173d Airborne Brigade, performing duties in MOS 11B as an assistant gunner and automatic rifleman.

4.  Item 40 (Wounds) of the FSM's DA Form 20 is blank.  Item 41 (Awards and Decorations) of the FSM's DA Form 20 does not show award of the Purple Heart.  Item 48 (Date of Audit) shows the FSM last audited the DA Form 20 on 13 January 1969.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he earned the Bronze Star, Air Medal, National Defense Service Medal, Good Conduct Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, Combat Infantryman Badge, and Parachutist Badge.  The Purple Heart is not shown in the list of awards and the FSM authenticated this document with his signature in item 32 (Signature of Person Being Transferred or Discharged) on the date of his separation.

6.  The FSM's name does not appear on the Vietnam Casualty Roster.  There is no evidence in the available records which show the FSM was ever wounded as the result of a hostile action or was recommended for or awarded the Purple Heart.

7.  A review of the Awards and Decorations Computer-Assisted Retrieval System maintained by the Military Awards Branch of the United States Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders for award of the Purple Heart.

8.  There are no orders in the available records which show FSM was awarded the Purple Heart.  Additionally, there is no evidence in the FSM's records which show he was medically treated for wounds sustained as a result of hostile action.
9.  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 required treatment by military medical personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her late husband should be awarded the Purple Heart was carefully considered.

2.  There are no general orders that show the applicant was awarded the Purple Heart.  There is no evidence in his service personnel records which shows that he was wounded or injured as a result of hostile action or treated for such wounds.  The FSM's name is not listed on the Vietnam Casualty Roster.

3.  In the absence of evidence that the FSM 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.  As a result, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.

4.  In the absence of evidence to the contrary, administrative regularity is presumed in the FSM's case.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  This action in no way diminishes the sacrifices made by the FSM 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)                                         AR20080009075



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ABCMR Record of Proceedings (cont)                                         AR20080009075



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