IN THE CASE OF:
BOARD DATE: 6 January 2009
DOCKET NUMBER: AR20080009673
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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending
6 November 1968 to show award of the Purple Heart.
2. The applicant states that he was initially assigned to the "241st" and transferred to the "173rd" while in Vietnam. He continues that while out on patrol he was shot in the left leg and was awarded the Purple Heart. His military records were lost when he departed Vietnam and he was given temporary records that do not contain all the correct information.
3. The applicant provides a copy of his DD Form 214.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was inducted into the Army on 15 November 1966 and successfully completed basic training and advanced individual training. He was awarded military occupational specialty 94B (Cook).
3. The applicant arrived in Vietnam and was assigned to the 241st Transportation Company on or about 16 January 1968.
4. The applicant departed Vietnam on or about 4 November 1968. He was honorably released from active duty on 6 November 1968 after completing 1 year, 11 months, and 22 days of creditable active service.
5. His DD Form 214 for the ending period 6 November 1968 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal with Device (1960).
6. There are no general orders in the applicants service personnel records that show he was awarded the Purple Heart. There also is no evidence that shows he was treated for wounds as a result of hostile action in Vietnam. The applicant's name is not listed on the Vietnam Casualty Roster.
7. Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not show the applicant was wounded and item 41 (Awards and Decorations) does not show award of the Purple Heart.
8. Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for the Purple Heart.
9. The applicant's Army Medical Treatment Records are unavailable.
10. 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 required treatment, and the medical treatment must have been made a matter of official record. This regulation also provides that there is no statute of limitations on request for award of the Purple Heart.
DISCUSSION AND CONCLUSIONS:
1. There are no orders in the applicant's service personnel records that show he was awarded the Purple Heart. There is no evidence in the available records and the applicant has not provided evidence that shows he received any injury that was a result of hostile action.
2. Regrettably, lacking any corroborating evidence of record showing the applicant was treated for a wound/injury that was the direct result of or caused by enemy action, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.
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.
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) AR20080009673
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ABCMR Record of Proceedings (cont) AR20080009673
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