IN THE CASE OF:	  

		BOARD DATE:	        5 August 2008

		DOCKET NUMBER:  AR20080009149 


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 the records of his deceased brother, a former service member (FSM), be corrected to show award of the Purple Heart.

2.  The applicant states, in effect, that his deceased brother was wounded in combat during his service in the Republic of Vietnam.

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  The FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 30 July 1971.

	b.  The FSM's Certificate of Death, dated 25 October 1999.

	c.  The applicant's Certificate of Live Birth, dated 30 December 1946.

	d.  Department of Veterans Affairs (DVA) Statement in Support of Claim, dated 12 December 2007.

	e.  Self-authored letter, dated 10 December 2007.

	f.  National Personnel Records Center (NPRC) letter, dated 15 November 2007.

	g.  The FSM's Standard Form (SF) 88 (Report of Medical Examination), dated 16 July 1971.

	h.  The FSM's Certificate of Training, dated 2 December 1970.

	i.  The FSM's DD Form 4 (Enlistment Contract-Armed Forces of the United States), dated 10 September 1968.

	j.  Special Orders Number 23, dated 27 January 1969, award of the Expert Marksmanship Qualification Badge with Machinegun Bar.

	k.  Special Orders Number 10, dated 13 January 1969, award of the Expert Marksmanship Qualification Badge with Rifle Bar.

	l.  Special Orders Number 218, dated 5 November 1968, award of the Second Class Marksmanship Qualification Badge with Grenade Bar. 

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 records show he enlisted in the Regular Army for a period of 3 years on 10 September 1968.  He completed basic combat and advanced individual training and was initially awarded military occupational specialty (MOS) 11B (Light Weapons infantryman).  He was also awarded MOS 76U (Communications Repairman Specialist) on 27 November 1969.  He was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) on 30 July 1971.  The highest rank/grade he attained during this period of military service was specialist four (SP4)/E-4.

3.  The FSM’s records show he served in the Republic of Vietnam from 30 March 1969 to 29 March 1970.  He was assigned to Company A, 4th Battalion 31st Infantry, 196th Infantry Brigade.
4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), of the FSM’s DD Form 214, dated 29 August 1969, shows he was awarded the Good Conduct Medal, the Vietnam Service Medal, the National Defense Service Medal, the Republic of Vietnam Campaign Medal, the Combat Infantryman Badge, the Expert Marksmanship Qualification Badge with Rifle Bar (M-14 and M-16) and two Overseas Service Bars.  Item 24 does not show award of the Purple Heart.

5.  Item 40 (Wounds) of the FSM’s DA Form 20 (Enlisted Qualification Record) shows a blank entry.  Furthermore, the FSM's name is not shown on the Vietnam Casualty Roster and there are no general orders in his records that show he was awarded the Purple Heart.

6.  Item 39 (Clinical Evaluation) of the FSM's SF 88, dated 16 July 1971, shows the entry "RPG, Gun shot wound scar R arm; Gun shot wound scar above L knee; and Multiple scar below L knee."  Furthermore, Item 73 (Notes and Significant or Interval History) of the FSM's SF 88 also shows the entry "Gun shot wound above L knee, RVN, 1969." 

7.  There are no other medical records that detail the applicant's cause of injury, treatment record, progress notes, and final disposition. 

8.  Item 38 (Record of Assignments) of the FSM's DA Form 20 (Enlisted Qualification Record) does not indicate that he was a patient as a result of injuries/wounds received during his service in the Republic of Vietnam.

9.  During the processing of this case, a member for the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the United States Army Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any Purple Heart orders on file for the FSM.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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 medical personnel, and the medical treatment must have been made a matter of official record.




DISCUSSION AND CONCLUSIONS:

There are no general orders that show the FSM was awarded the Purple Heart and there is no evidence in his service personnel records that shows that he was wounded or injured as a result of hostile action or treated for such wounds.  In the absence of corroborating documentation that shows he 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.

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 FSM in service to our Nation.  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)                                         AR20080009149



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ABCMR Record of Proceedings (cont)                                         AR20080009149



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