IN THE CASE OF:
BOARD DATE: 6 November 2008
DOCKET NUMBER: AR20080010700
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 military records to show award of the Purple Heart.
2. The applicant states, in effect, that during a fire fight in Tay Ninh Province, he was hit in the right arm by shrapnel.
3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with the period ending 12 May 1970 and three newspaper articles.
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 in the Army on 13 May 1968 and successfully completed basic training and advanced individual training. He was awarded military occupational specialty 11B (Light Weapons Infantryman).
3. The applicant arrived in Vietnam and was assigned to B Company, 2nd Battalion, 22nd Infantry, 25th Infantry Division on or about 3 October 1968.
4. The applicant departed Vietnam on or about 3 October 1969.
5. Item 39 (Identifying body marks, scars, tattoos) of the applicant's Standard Form 88 (Report of Medical Examination), dated 13 May 1970, shows no abnormalities.
6. A Standard Form 89 (Report of Medical History), dated 13 May 1970, shows that the applicant was being separated and that he stated, "I AM IN FAIR HEALTH." Item 33 (Have you ever had any illness or injury other than those already noted?) shows that he indicated "no."
7. The applicant's DD Form 214 with the period ending 13 May 1970 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal with three bronze service bars, the Republic of Vietnam Campaign Medal with Device (1960), the Combat Infantryman Badge, the Bronze Star Medal, the Expert Marksmanship Qualification Badge (M-60 Machinegun), the Expert Marksmanship Qualification Badge (M-16 Rifle), and the Expert Marksmanship Qualification Badge (M-14 Rifle).
8. There are no general orders in the applicants service personnel records that show he was awarded the Purple Heart. There also is no evidence in his service personnel records that shows that he was wounded or treated for wounds as a result of hostile action in Vietnam. The applicant's name is not listed on the Vietnam Casualty Roster.
9. 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.
10. The applicant's Army Medical Treatment Records are unavailable.
11. The applicant submitted three newspaper articles that show B Company, 2nd Battalion, 22nd Infantry, 25th Infantry Division was engaged against enemy forces in Vietnam.
12. 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:
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) AR20080010700
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ABCMR Record of Proceedings (cont) AR20080010700
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