IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080009752 


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 after being shot and falling out of a chopper and receiving a ruptured kidney and a back injury, he believes that the injuries warrant a Purple Heart.  He further adds that his company gave him the medal and told him that the paper work would follow him home, but he never received it.  

3.  The applicant provides a copy of a portion of a memorandum from the Department of Veterans Affairs (VA) Rating Decision (page 2) 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 are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.  

3.  The applicant's record shows that he was inducted into the Regular Army on  
18 January 1966.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 11C (Infantryman Indirect Fire Crewmember).  The highest grade he attained was pay grade E-4. 

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows he served in the Vietnam from 14 December 1966 through 13 December 1967.  Item 39 (Campaigns) of this document is absent any entries.  Item 40 (Wounds) is blank (no entry).  Item 41 (Awards and Decorations) of the DA Form 20 shows that the applicant was awarded the National Defense Service Medal, the Republic of Vietnam Campaign Medal, the Vietnam Service Medal, the Combat Infantryman Badge, the Air Medal, and the two Overseas Service Bars.  The Purple Heart is not included in the list of awards. 

5.  There are no orders or other documents in the applicant's reconstructed NPRC file that show he was ever recommended for or awarded the Purple Heart by proper authority, or that he was ever treated for a combat related wound by military medical personnel while he was serving on active duty.  

6. On 13 December 1967, the applicant was honorably released from active duty after completing 1 year, 10 months and 26 days of active military service.  Item 24 of the DD Form 214 the applicant was issued at the time shows he earned the following awards:  The National Defense Service Medal; the Vietnam Service Medal, the Vietnam Campaign Medal; the Combat Infantry Badge, the Air Medal, the Expert Marksmanship Qualification Badge with Rifle (M-14) Bar and two Overseas Service Bars.  The applicant authenticated the separation document with his signature, in Item 32 (Signature of Person Being Transferred or Discharged), on the date of his separation.  



7.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  There is no evidence in his records or on The Adjutant General, Casualty Division's Vietnam Casualty Roster that shows he was wounded or treated for wounds as a result of hostile action.

8.  The applicant provides a copy of a portion of a VA Rating Decision, page 2.  This document indicates that the applicant was granted service connection disability and a 100% disability rating for degenerative joint disease of the thoracolumbar spine and for post traumatic stress disorder (PTSD) that was increased from 70% to 100 % in September 2007.  

9.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to award of the Purple Heart.  It states, in pertinent part, that in order to support an award of the Purple Heart, there must be evidence that a member was wounded or injured as a result of enemy action; that the wound or injury for which the award is being made required treatment by medical personnel; and this treatment must be supported by medical treatment records that were made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  The contentions of the applicant were carefully considered and found to be insufficient in evidence.  By regulation, in order to support award of the Purple Heart there must be evidence that the wound for which the award is being made was received as a result of enemy action.

2.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action.  The Purple Heart is also not included in the list of awards contained in Item 41.  Further, the Purple Heart is not included in the list of awards contained on the applicant's 13 December 1967 DD Form 214, which he authenticated with his signature on the date of his discharge.  In effect, his signature was his verification that the information contained on the DD Form 214, to include the list of awards, was correct on the date the separation document was prepared and issued.  

3.  In addition, the applicant's available record is void of any orders or other documents that indicate he was ever recommended for or awarded the Purple Heart by proper authority while serving on active duty.  


4.  Further, the applicant's name is not included on the Vietnam Casualty Roster, the official DA list of Vietnam battle casualties, and there are no Purple Heart orders on file in the ADCARS maintained by HRC.  Therefore, absent any evidence of record confirming the applicant's wound was received as a result of enemy action, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  

5.  The applicant provides a copy of page 2 of a VA Rating Decision.  This document indicates the applicant was granted service connected disability for degenerative joint disease of the spine and for PTSD; however, it does not provide the circumstances under which the wound was received, or any military medical record verification that the wound was received as a result of enemy action.  

6.  The sincerity of the applicant’s claim of entitlement to the Purple Heart is not in question.  However, the available evidence does not confirm that the applicant was wounded or injured while engaged in combat.  Therefore, based on the available evidence, there is insufficient evidence upon which to base award of the Purple Heart in this case.

7.  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 related to award of the Purple Heart.  The applicant and all others concerned should know that this decision 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)                                         AR20080009752



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ABCMR Record of Proceedings (cont)                                         AR20080009752



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