IN THE CASE OF:	  

		BOARD DATE:	        17 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080009390 


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 received a head injury on 21 February 1971 while in the Republic of Vietnam (RVN). 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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.  On 9 September 1969, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years.  On 8 December 1969, he was discharged from the DEP and enlisted in the Regular Army for 3 years.  He completed the training requirements and was awarded military occupational specialty 93K (Air Traffic Control (ATC) Enroute Specialist.)
 
3.  The applicant served in the Republic of Vietnam (RVN) from 16 December 1970 - 30 November 1971.  He performed duties as an ATC Specialist with the 346th Aviation (Detachment) Division.

4.  Item 24 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 does not show award of the Purple Heart.  The applicant authenticated this form with his signature attesting to its accuracy.  His DA Form 20 (Enlisted Qualification Record) does not show any wounds or injuries sustained as a result of hostile action.  

5.  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.  There was a copy of the applicant's separation physical, dated 2 December 1971, and it does not show the applicant sustained any injuries.

6.  There are no general orders in the applicant’s records to show he was awarded the Purple Heart.  

7.  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.

9.  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:

1.  The applicant requests award of the Purple Heart.

2.  The applicant's service medical records were not available for review.  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.  His separation physical does not show he sustained any injuries as a result of hostile action.

3.  The available record does not contain any general orders that show the applicant was 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 DA Form 20 does not show any entries for wounds sustained in hostile action.  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.  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 by medical personnel, and that the medical treatment he received was made a matter of official record.  The applicant has failed to provide sufficient evidence to meet this regulatory guidance.  

5.  Regrettably, the applicant has not provided sufficient evidence to show he was wounded or injured as a result of hostile action.  The only evidence is his contention that he received a head injury on 21 February 1971, but there is no corroborating evidence to support his contention.  Therefore, there is an insufficient basis upon which to grant 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 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)                                         AR20080009390



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ABCMR Record of Proceedings (cont)                                         AR20080009390



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