IN THE CASE OF:	  

		BOARD DATE:	  30 September 2008

		DOCKET NUMBER:  AR20080010477 


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 received shrapnel in his chin and left calf that the injuries were not documented in his file.   

3.  The applicant provides a Department of Veterans Affairs (VA) Rating Decision, dated 3 June 2008, 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 that he enlisted in the Regular Army and entered active duty on 29 October 1969, and was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  
3.  The applicant's Enlisted Qualification Record (DA Form 20) shows he served in the Republic of Vietnam (RVN) from 26 May 1970 through 27 May 1971.  Item 40 (Wounds) is blank, and the PH is not included in the list of awards contained in Item 41 (Awards and Decorations). 

4.  The applicant's record is void of any orders or other documents that indicate he was ever recommended for, or awarded the PH by proper authority and/or of medical treatment records showing he was treated for a combat related wound or injury.  

5.  On 30 May 1971, the applicant was honorably released from active duty (REFRAD), in the rank of specialist four (SP4), after completing 1 year, 
7 months, and 4 days of active military service.  The separation document 
(DD Form 214) he was issued at the time shows, in Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), that he earned the following awards during his active duty tenure:  National Defense Service Medal; Vietnam Service Medal; RVN Campaign Medal with 60 Device; Army Commendation Medal; Combat Infantryman Badge; Parachutist Badge; Marksman Marksmanship Qualification Badge with Rifle Bar; and 2 Overseas Service Bars.  The PH is not included in the list of awards in Item 24, and the applicant authenticated the DD Form 214 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 3 June 2005, which awarded him service connection for residuals, shrapnel, chin with a 0 percent disability rating and residuals , shrapnel, left calf with a 0 percent disability rating. This document confirms the service records were silent regarding any complaints or treatment for shrapnel wound of the chin and were silent for any complaints or treatment for a left calf injury.  

7.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant's name is not included on the roster.  A review of the DA Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch, United States Army Human Resources Command (HRC), which is a web based index containing general orders issued between 1965 and 1973 for the Vietnam era was also completed.  There were no PH awards orders pertaining to the applicant on ADCARS.  


8.  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 a member was wounded or injured as a result of enemy action.  The wound or injury for which the PH is being awarded must have required treatment by military 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 applicant's contention that he is entitled to the PH based on a shrapnel wound he received in the RVN was carefully considered.  However, by regulation 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 direct result of or was caused by enemy action; that the wound required treatment by military medical personnel; and a record of this treatment must have been made a matter of official record.  

2.  The applicant provides a VA Rating Decision that indicates he received service connection for residuals, shrapnel, chin; however, this document also confirms the military records were silent regarding any complaints or treatment for shrapnel wound of the chin and were silent for any complaints or treatment for a left calf injury.  It is also void of any information or confirming that the wounds were received as a result of enemy action.  

3.  The applicant's military record is void of any medical treatment records that show he was ever treated for a combat related wound that he received as a result of enemy action.   His record also contains no orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty.

4.  Further, Item 40 of the applicant's 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 PH is also not included in the list of awards contained on his DD Form 214, which he authenticated with his signature on the date of his separation.  In effect, his signature was his verification that the information contained on the DD Form 214, to include the list of awards, was correct at the time the separation document was prepared and issued.  


5.  In addition, the applicant's name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties, and the ADCARS is void of any PH pertaining to the applicant.  Thus, absent any evidence of record to corroborate the fact that the shrapnel residuals noted in the VA Rating Decision were received as a result of enemy action, or any evidence of record showing the applicant was wounded in action in the RVN and/or awarded the PH by proper authority while serving on active duty, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Therefore, it would not be appropriate or serve the interest of all those who served in the RVN and faced similar circumstances to grant the requested relief.  

6.  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 PH.  

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)                                         AR20080010477



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ABCMR Record of Proceedings (cont)                                         AR20080010477


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