IN THE CASE OF:	  

		BOARD DATE:	        15 JANUARY 2009

		DOCKET NUMBER:  AR20080009310 


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 essentially states that he received an injury to his left hand while in Vietnam, but that he was overlooked for the Purple Heart for unknown reasons.  He also states that he was and is now suffering from post-traumatic stress disorder.  He further states that he was showing his children his records and was asked why he was not awarded the Purple Heart.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), two pages of a Department of Veterans Affairs (DVA) Rating Decision, dated 15 December 1993, page 3 of a separate DVA Rating Decision which appears to be dated 11 June 2003, and a letter, dated 
29 May 2008, from the National Personnel Records Center in St. Louis, Missouri 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 October 1963.  He completed basic and advanced individual training and was awarded military occupational specialty 95B (Military Policeman).  After serving his initial permanent duty assignment at Fort Benning, Georgia, he departed for the Republic of Vietnam on 30 March 1965, and was assigned to Company C, 716th Military Police Battalion.  He returned to the continental United States on 
29 March 1966, and was stationed at Fort Polk, Louisiana until he was honorably released from active duty on 21 October 1966.  The DD Form 214 that he was issued at the time of his release from active duty shows that he was awarded the Good Conduct Medal, the National Defense Service Medal, the Republic of Vietnam Campaign Medal, the Expert Marksmanship Qualification Badge with 
M-14 Rifle Bar and M-1 Rifle Bar, and the Marksman Marksmanship Qualification Badge with Pistol 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.

4.  The applicant provided two pages of a DVA Rating Decision, dated 
15 December 1993, which essentially shows that the applicant related to the DVA that an injury to his left hand occurred during his service in Vietnam, and that the DVA awarded him 10 percent service-connected compensation for residuals of a scar on his left hand.

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 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.  A physical lesion is not required, however, the wound for which the award is made must have required treatment by a medical officer and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.  When contemplating an award of the Purple Heart, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.

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 he should be awarded the Purple Heart.

2.  The evidence provided by the applicant, in the form of a DVA Rating Decision paperwork which granted him service-connected compensation for residuals of a scar on his left hand that the applicant claimed occurred during his service in Vietnam was carefully considered.  However, these documents do not show that any injury he presumably sustained to his left hand while in Vietnam was the result of hostile action.  Additionally, the evidence provided by the applicant is not supported by any corroborating evidence in his military records.  As a result, the evidence provided by the applicant does not approach the threshold of proving, by a preponderance of the evidence, that the applicant was wounded or injured as a result of hostile action.

3.  While the sincerity of the applicant's claim to entitlement to award of the Purple Heart is not in question, absent evidence which conclusively proves, by a preponderance of the evidence, that he was wounded or injured as a result of hostile action, that his wounds or injuries as a result of hostile action were treated by medical personnel at the time, and that this medical treatment was made a matter of official record, there is insufficient basis upon which to award the Purple Heart to the applicant in this case.  
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  __X______  ___X_____  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)                                         AR20080009310



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ABCMR Record of Proceedings (cont)                                         AR20080009310



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