IN THE CASE OF:	  

		BOARD DATE:	  15 October 2008

		DOCKET NUMBER:  AR20080010960 


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, that he be awarded the Purple Heart. 

2.  The applicant states, in effect, that he served in Vietnam from 1 January 1966 to 1 January 1967 and was wounded in action.  In an earlier application to the Board, the applicant stated he was in a swamp (rice paddy) when a man next to him stepped on a land mine.  They were then attacked and he received a bayonet wound to his left arm.  

3.  In support of this application, the applicant provides a copy of a military service data sheet.  In support of his earlier application, the applicant provided a photograph of what he purported to be a three inch scar on his left arm.

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 show he enlisted in the Regular Army, in pay grade E-1, on 15 July 1964, for 3 years.  He completed basic combat and advanced individual training and was assigned military occupational specialty 63B, wheel vehicle repairman.  He was promoted to pay grade E-4 on
31 January 1966.

3.  The applicant served in Germany from 21 February 1965 to 24 June 1967.  There is no evidence he served in Vietnam during his period of service.

4.  The applicant was honorably released from active duty, in pay grade E-4, on 27 June 1967, for Early Release Overseas Returnee.  He was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).

5.  The applicant was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that lists the following awards in Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized):  the Good Conduct Medal; the National Defense Service Medal; and the Marksman Marksmanship Qualification Badge, with Rifle Bar.  The Purple Heart is not listed.

6.  There are no orders in the applicant’s service personnel record that show he was awarded the Purple Heart during his period of service.  There is also no evidence in his record that shows he was wounded or treated for wounds as a result of hostile action in Vietnam.  His DA Form 20 (Enlisted Qualification Record) does not show any entry in Item 40 (Wounds) or list the Purple Heart in Item 41 (Awards and Decorations).

7.  A review of the Awards and Decorations Computer Assisted Retrieval System of the records for the time frame the applicant alleges to have served in Vietnam was conducted.  This review failed to show any orders were published authorizing award of the Purple Heart to the applicant.

8.  The military service data sheet shows the applicant served in the Army from 15 July 1964 to 27 June 1967 and was honorably discharged.  It also states “Conflict Locations:  Vietnam (01/01/1966 to 01/01/1967” and “Purple Heart:  No” to indicate he was not awarded the Purple Heart.  A legend to define the fields shown on the military service data sheet was not provided for reference by the applicant.

9.  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.  By regulation, to be awarded the Purple Heart it is necessary to establish that a Soldier was wounded or injured in action.  Careful consideration was given to the documentation submitted by the applicant.  There is no evidence of record, and the applicant has not provided sufficient evidence, which shows that he ever served in the Republic of Vietnam and was awarded the Purple Heart or that he was wounded or injured or treated for wounds or injuries as a result of hostile action in the Republic of Vietnam.  

2.  Given the lack of any corroborating evidence of record or evidence from other official sources, the documentation provided by the applicant alone is not sufficient to meet the regulatory burden of proof necessary to support the applicant’s contentions that he served in and was wounded or treated for wounds as a result of hostile action in the Republic of Vietnam and entitled to award of the Purple Heart.  

3.  The evidence of record contains no orders or record of medical treatment for wounds or injuries received in action that was made a matter of official record at the time.  The evidence also does not show he was ever recommended for or awarded the Purple Heart by proper authority.  Further, the Purple Heart is not included in the list of authorized awards contained on his DD Form 214, dated
27 June 1967.  Therefore, absent corroborating evidence confirming the applicant's account of how he received his alleged injury (eyewitness accounts, chain of command supporting letters, etc.), the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.

4.  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.  

5.  In view of the foregoing, there is no basis for granting the applicant's request.







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)                                         AR20080010960



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ABCMR Record of Proceedings (cont)                                         AR20080010960


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