IN THE CASE OF:	  

		BOARD DATE:	        14 August 2008

		DOCKET NUMBER:  AR20080009238 


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 award of the Purple Heart.

2.  The applicant states, in effect, that he sustained third degree burns when the aircraft he was flying in was shot down by the enemy in the Republic of Vietnam (RVN). 

3.  The applicant provides a copy of a letter from his attending physician.

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 entered active duty in the Regular Army on 31 August 1948.  He served through a series of reenlistments until he was medically retired on
18 June 1971.  He attained the rank and grade of master sergeant/E-8 and completed 22 years, 9 months, and 18 days of active Federal service.

3.  The applicant served in the RVN from 9 January – 29 November 1966, and again from 5 January – 11 July 1970.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 covering his period of service in the RVN does not show award of the Purple Heart.  The applicant authenticated his DD Form 214 with his signature.

6.  There are no medical records in the available military personnel file that show the applicant sustained wounds as a result of hostile action or that show he was treated for wounds sustained as a result of hostile action.  

7.  There are no general orders in the applicant’s records to show he was awarded the Purple Heart.  During the processing of this case, a member of 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 applicant.

8.  The applicant's name does not appear on the Vietnam Casualty Roster.

10.  The medical evidence of record shows the applicant was medically retired as a result of numerous injuries sustained on 27 June 1970 while a passenger on a military aircraft when the aircraft crashed and burned attempting to land.  A Western Union Telegram, dated 29 June 1970, to the applicant's wife notified her that the applicant had been placed on the very seriously ill list and that his injuries were considered non-hostile action.

11.  A 29 June 1970 message from the applicant's unit indicated that the applicant was very seriously injured when the aircraft he was riding in attempted to land, crashed and burned.  The incident was non-hostile.

12.  DA Form 2173 (Statement of Medical Examination and Duty Status), dated 27 June 1970, shows that the aircraft in which the applicant was flying made a long approach to the airfield.  The pilot attempted to gain altitude and go around, but the attempt failed, and the aircraft crashed and burned.

13.  The applicant provided a letter from his attending physician, dated 21 April 2008.  He indicates that he remembers treating the applicant for his injuries sometime between 1969 – 1971 when the airplane in which the applicant was flying was downed by hostile fire in the RVN.  

14.  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, and the medical treatment must have been made a matter of official record.  This regulation further states that there is no time limit on submission of requests for award of the Purple Heart.  Accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or  caused by enemy action are examples of injuries or wounds which clearly do not qualify for award of the Purple Heart. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to award of the Purple Heart.

2.  The applicant's official personnel and medical records show that he was seriously injured when the airplane in which he was flying crashed and burned during an attempted landing.  There is no evidence in his records showing that the aircraft was shot down by enemy fire.  The incident was classified as non-hostile and was considered an accident.

3.  There is no evidence that the applicant was recommended for or awarded the Purple Heart.  There is no evidence in his service personnel records which shows he was wounded or injured as a result of hostile action or treated for such wounds.  His name is not on the Vietnam Casualty Roster.  A review of ADCARS failed to reveal any Purple Heart orders on file for the applicant.

4.  In the absence of evidence that the applicant 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.  Although the applicant contends that his injuries were sustained as a result of enemy action, there is no evidence available to support his contentions.  He submitted a letter from the physician who attended his injuries as a result of the airplane crash who indicates that the applicant's aircraft was downed by hostile file; however, the contemporaneous investigation of the incident, fails to support his contention.  The applicant must show and his official record must verify that he was wounded as a result of hostile action, that the wound required treatment, and that the medical treatment he received was made a matter of official record.  The preponderance of the evidence does not show the applicant was injured as a result of hostile action. 
5.  Regrettably, the applicant's contentions alone do not provide sufficient evidence to show he was wounded or injured as a result of hostile action.  Therefore, there is no basis to grant award of the Purple Heart.  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 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

__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.



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               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)                                         AR20080009238





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ABCMR Record of Proceedings (cont)                                         AR20080009238



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