IN THE CASE OF:	  

		BOARD DATE:	  13 August 2008

		DOCKET NUMBER:  AR20080009487 


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, he received the Army Commendation Medal (ARCOM) with "V" (Valor) Device, for his heroism in connection with military operations against a hostile force on 22 August 1968, while serving in the Republic of Vietnam (RVN), and that he was wounded during this action.  He claims he was taken to and treated for his wounds at the 25th Evacuation Hospital in the RVN, and he should receive this earned award.  

3.  The applicant provides no documentation 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 record shows he was inducted into the Army of the United States and entered active duty on 16 August 1967, and was trained in and awarded military occupational specialty (MOS) 13E (Field Artillery Intelligence/Operations).

3.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he served in the RVN from 14 January 1968 through 13 January 1969.  Item 40 (Wounds) is blank, and the PH is not included in the list of awards contained in Item 41 (Awards and Decorations).  The applicant last audited the DA Form 20 on  
14 February 1969.  

4.  The applicant's Official Military Personnel File (OMPF) contains orders that awarded the applicant the ARCOM with "V" Device, for his heroism in connection with military operations against a hostile force on 22 August 1968.  These orders refer to the applicant's disregard for his own safety as he ran through the heavy volume of enemy fire to administer first aid to his wounded comrades.  However there is no indication that he himself was wounded during this action.  His OMPF is void of orders or other documents that indicate he was ever wounded in action, or awarded the PH, and there are no medical treatment records on file that indicate he was ever treated for a combat-related wound or injury.  

5.  On 16 August 1969, the applicant was honorably released from active duty (REFRAD) after completing 2 years and 1 days of active military service.  The DD Form 214 he was issued shows he earned the following awards during his active duty tenure:  ARCOM with "V" Device; Army Good Conduct Medal; National Defense Service Medal; Vietnam Service Medal; Vietnam Campaign Medal; 2 Overseas Bars; Sharpshooter Marksmanship Qualification with Rifle
(M-14) Bar; and Marksman Marksmanship Qualification Badge with Rifle 
(M-16) Bar.  The PH is not included in the list of awards contained on his final 
DD Form 214. 

6.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant's name was not included on this casualty list.  The staff member also reviewed the 
DA Awards and Decorations Computer Assisted Retrieval System (ADCARS), which contains award orders issued during the Vietnam Era.  There were no PH orders pertaining to the applicant on file.

7.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to award a PH there must be evidence 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 claim of entitlement to the PH based on wounds he sustained to his face during combat action for which he was awarded the ARCOM with "V" Device was carefully considered.  However, by regulation, in order to award the PH it is necessary to establish 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 medical treatment must have been made a matter of official record.

2.  The evidence of record confirms the applicant was awarded the ARCOM with "V" Device for heroism; however, the orders for this award while indicating the applicant ran through heavy volumes of fire to administer first aid to his wounded comrades, fail to indicate he was wounded during this action.  In addition, there are no orders or other documents on file in the applicant’s OMPF indicating he was ever recommended for or awarded the PH by proper authority while serving on active duty.  The record is also void of any medical treatment records that show he was ever treated for a combat-related wound by military medical personnel during his active duty tenure. 

3.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded as a result of enemy action, and the PH is not included in the list of awards contained in Item 41.  The applicant last audited the DA Form 20 on
14 February 1969, at the completion of his RVN tour.  In effect, this audit was his verification that the information on the record, to include the Item 40 and Item 41 entries, was correct at that time.  

4.  Further, the applicant's DD Form 214 does not include the PH in the list of authorized awards listed; his name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties; and there are no PH award orders pertaining to him on file on the ADCARS.  Absent any evidence confirming he was wounded in action, or treated for a wound received as a result of enemy action, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  As a result, it would not be appropriate or serve the interest of all those who served in the RVN, and who faced similar circumstances, to grant the requested relief 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)                                         AR20080009487



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ABCMR Record of Proceedings (cont)                                         AR20080009487


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