IN THE CASE OF:	  

		BOARD DATE:	  16 October 2008

		DOCKET NUMBER:  AR20080009477 


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, award of the Purple Heart (PH).

2.  The applicant states, in effect, that he was wounded in the Republic of Vietnam (RVN) sometime in 1969.  He also states that he returned to the United States without any evidentiary documents to confirm this wounding.  He indicates his claim for shrapnel wound to his right groin with the Department of Veteran Affairs (VA) was adjudicated on his behalf; however, the PH was never awarded to him or annotated on his separation document (DD Form 214).

3.  The applicant provides his DD Form 214 and a VA Rating Decision in support of his 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 he enlisted in the Regular Army and entered active duty on 4 November 1966.  He was trained in and awarded military occupational specialty (MOS) 12C (Bridge Specialist).

3.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he served in the RVN from 3 September 1967 through 10 April 1969.  Item 40 (Wounds) is blank, and the PH is not included in the list of awards contained in Item 41 (Awards and Decorations).  Item 48 (Date of Audit) shows the applicant last audited the DA Form 20 on 10 September 1969.  

4.  The applicant’s Official Military Personnel File (OMPF) contains no orders or other documents that indicate the applicant was ever wounded in action or that he was ever recommended for or awarded the PH by proper authority while serving on active duty.

5.  On 3 November 1969, the applicant was honorably released from active duty (REFRAD).  The DD Form 214 he was issued at that time shows he completed a total of 3 years of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows he earned the following awards during his tenure on active duty:  National Defense Service Medal; RVN Campaign Medal; Vietnam Service Medal; and Expert Marksmanship Qualification Badge with Rifle Bar.  The PH is not included in the list of awards in Item 24, and he authenticated this document with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his REFRAD.

6.  The applicant provides a VA rating decision, dated 22 February 2008, which indicates, in pertinent part, that he was granted service connection for a shrapnel wound, right Groin (0%) and fractured mandible (0.%).  The rating decision is silent on the facts and circumstances regarding how these conditions were incurred.  

7.  In connection with the processing of this case, a member of the Boards staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The roster did not contain an entry pertaining to the applicant.  

8.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains guidance on award of the PH.  It states, in pertinent part, that in order to support award of the PH there must be evidence confirming that the wound for which the award is being made was received as a result of enemy action, that it required treatment by military medical personnel, and a record of this treatment must have been made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to the PH for his wounds sustained in the RVN were carefully considered.  However, by regulation, in order to support award of the PH, it is necessary to establish that the wound for which the award is being made was received as a direct result of, or was caused by enemy action; that the wound required treatment by military medical personnel; and that a record of this medical treatment was made a matter of official record.

2.  The evidence of record provides no indication that the applicant was ever wounded in action while serving in the RVN, or that he was ever recommended for or awarded the PH by proper authority while serving on active duty.  Item 40 of his DA Form 20 is blank, which indicates he was never wounded in action, and the PH is not included in the list of awards contained in Item 41.  The applicant last audited his DA Form 20 on 10 September 1969, subsequent to his departure from the RVN.  In effect, his audit was his verification that the information on the DA Form 20, to include the entries in Item 40 and Item 41, were correct on that date.   

3.  Further, the applicant's record is void of any orders or other documents indicating he was ever recommended for or awarded the PH while serving on active duty.  It also contains no medical treatment records indicating he was ever treated for a combat-related wound or injury during his active duty tenure.  In addition, the PH is also not listed in Item 24 of his DD Form 214, which he authenticated with his signature on the date of his REFRAD.  In effect, his signature was his verification that the information contained on the separation document, to include the list of awards in Item 24, was correct at the time the 
DD Form 214 was prepared and issued.  Finally, his name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  As a result, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case. 

4.  The VA Rating Decision provided by the applicant, while indicating he was granted service connection for a shrapnel wound to the right groin, provides no information regarding the facts and circumstances surrounding how this wound was incurred and is silent regarding military records used in the decision.  As a result, absent any evidence of record confirming the shrapnel wound referred to in this document was received as a result of enemy action, the rating decision alone is not sufficient to support award of the PH.  Therefore, it would not be  
appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to support award of the PH in this case. 


5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  

6.  The applicant and all others concerned should know that this action related to award of the PH 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

___x____  ___x____  ___x____  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.




      _______ _   x_______   ___
               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)                                         AR20080009477



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ABCMR Record of Proceedings (cont)                                         AR20080009477


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