IN THE CASE OF:
BOARD DATE: 15 October 2008
DOCKET NUMBER: AR20080009960
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 (Report of Transfer or Discharge) for the period ending 5 June 1973 to show award of the Purple Heart.
2. The applicant states that he was wounded by a shell fragment on 5 May 1968 in Vietnam. He contends that his wound was over the right eye with a retained foreign body still present, that he received treatment at a brigade aid station, and that he was returned to duty.
3. The applicant provides a copy of his DD Form 214 for the period ending
5 June 1973; and a letter, dated 14 March 1974, from the Veterans Administration (currently known as the Department of Veterans Affairs (DVA)), 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 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. Having prior service, the applicant entered active duty on 7 October 1965. He served as a ranger parachutist in Vietnam from 1 January 1968 to 23 December 1968 and was honorably discharged in the rank of captain on 5 June 1973.
3. The applicants DD Form 214 for the period ending 5 June 1973 does not show the Purple Heart as an authorized award.
4. There is no evidence in the available records which show that the applicant was awarded the Purple Heart or that he was wounded as a result of hostile action in Vietnam.
5. Section 8 (Wounds Received Through Enemy Action) on the applicant's DA Form 24 (Service Record) is blank. The applicant's name does not appear on the Vietnam Casualty Roster.
6. In support of his claim, the applicant provided a letter, dated 14 March 1974, from the DVA which states that he was granted service-connection for high frequency hearing loss right, deviated nasal septum, and shell fragment wound retained foreign body in right temple region evaluated at 0% disabling and therefore nocompensable.
7. 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 by medical personnel, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
There is no evidence of record which shows that the applicant was wounded or treated for any injuries as a result of hostile action in Vietnam. In the absence of orders or other evidence of record showing that the applicant was injured or treated for wounds as a result of hostile action, the DVA letter provided by the applicant is not sufficient as a basis for award of the Purple Heart. Therefore, there is insufficient evidence on which to base an award of the Purple Heart in this case.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___XX_____ ___XX_____ ___XX_____ 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.
_________XXXX_______________
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) AR20080009960
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