IN THE CASE OF:	  

		BOARD DATE:	        17 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080009471 


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 three (3) Purple Hearts. 

2.  The applicant states, in effect, that he was wounded in the Republic of Vietnam (RVN) on 10 April 1969 when he received shrapnel in his left arm from a mortar attack; on 5 June 1969 when a booby trapped artillery round exploded and he was struck in the left eyebrow area by shrapnel; and on 20 August 1969, when he was setting charges and an early explosion caused a small piece of shrapnel to hit the back of his neck hairline area.  He contends he was never awarded a Purple Heart because his unit was always on the move and when he asked his platoon sergeant about his orders for a Purple Heart he was always told the orders would arrive at any time.  He also contends that he wrote his sister every month while in the RVN and told her about each time he was wounded.  When he was discharged in 1972, he discovered that no Purple Heart orders were ever entered in his record.  He has been patient in waiting for his Purple Heart orders and believes the failure to issue him these awards is an unjust action for a Vietnam war veteran. 

3.  The applicant provides a letter of support from his sister.

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 served in the Regular Army from 31 October 1969 through
4 May 1972.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He attained the grade of sergeant/E-5.  

3.  The applicant's official records for this period of service were not available for review.  The applicant's DA Form 2-1 (Personnel Qualification Record) from a later period of service shows he served in the RVN from 18 April 1969 - 
20 November 1970, and again from 24 February 1971 - 4 May 1972.  

4.  The applicant served in the Regular Army from August 1974 through July 1977, however, a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) covering this period of service was not available in the official record.

5.  On 31 January 1996, he retired with 23 years, 1 month, and 25 days of active duty service.

6.  Item 24 of the applicant’s DD Forms 214 do not show award of the Purple Heart.  The applicant authenticated these forms with his signature attesting to the accuracy of the information therein.  

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

8.  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.  

9.  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.
10.  The applicant's name does not appear on the Vietnam Casualty Roster.

11.  The applicant provided a letter from his sister who states that her brother wrote to her from the RVN about being wounded on 3 different occasions.  She contends that he told her he was medically evacuated to a hospital after each wounding, and was then returned to his unit after medical treatment. 

12.  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's official record for the period of service in question was not available for review.  Attempts were made to obtain his official records from the National Archives and Records Administration but to no avail.  

2.  There are no general orders and the applicant has not provided a copy of any orders showing he was awarded the Purple Heart.  There is no evidence in his available service personnel records which shows he was wounded or injured as a result of hostile action or treated for such wounds.  A research of ADCARS failed to reveal any Purple Heart orders on the applicant.  At a minimum, if he had been wounded and treated at a military hospital as his sister claims, his name would appear on the Vietnam Casualty Roster, and it does not.  

3.  The applicant has not provided any medical evidence that he was wounded or injured as a result of hostile action.  He only contends that he was wounded on
3 separate occasions.  He fails to explain why he spent 23 years in the Army and did not pursue these awards while he was on active duty through the appropriate channels if he believed an injustice had occurred in his record.  

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 a Purple Heart in this case.    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. 



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)                                         AR20080009471



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ABCMR Record of Proceedings (cont)                                         AR20080009471



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