IN THE CASE OF:	  

		BOARD DATE:	  	  28 October 2008

		DOCKET NUMBER:  AR20080011532 


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 award of the Purple Heart for injuries he sustained in action on 8 June 1968 while he was a member of Company A, 2nd Battalion, 60th Infantry, 9th Infantry Division in the Republic of Vietnam.  

2.  The applicant states that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) does not reflect the Purple Heart in Block 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized).  

3.  The applicant provides his separation orders from active duty, dated 6 June 2007; his DD Form 214 for the period ending 29 February 2008; his DD Form 214 for the period ending on 8 June 2007; his DD Form 214 for the period ending on 16 April 2006; his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service); his DD Form 214 for the period ending on 
15 August 1969; his DD Form 215 (Correction to DD Form 214), dated 12 November 1997; his DA Form 4187 (Personnel Action), dated 22 January 2008; a memorandum, Subject: Request for Retroactive Award of Purple Heart, dated 18 January 2008; his personal statement, dated 10 November 2007; his assignment orders to Vietnam, dated 7 December 1968; his general orders awarding him the Bronze Star Medal with “V” Device; his general orders awarding him award of the Army Commendation Medal with “V” Device; six letters of support; his Enlisted Record Brief; his DA Form 2-1 (Personnel Qualification Record - Part II); and two photographs.  


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 was inducted into the Army of the United States on 16 August 1967.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty 11B (light weapons infantryman).  He was assigned to Vietnam on 15 January 1968 with Company C, 2nd Battalion, 60th Infantry, 9th Infantry Division as a rifleman.  

3.  Headquarters, 9th Infantry Division General Orders Number 6101, dated 28 July 1968, show the applicant was awarded the Bronze Star Medal with “V” Device for action on 8 June 1968.  These orders state, in part, that “As his platoon was maneuvering through an open rice paddy, it came under sudden hostile fire from a well entrenched Viet Cong force.  Specialist A_____ courageously moved to within 25 meters of the hostile bunkers and provided extremely effective covering fire for the evacuation of the casualties…”

4.  Headquarters, 9th Infantry Division General Orders Number 6435, dated 6 August 1968, show the applicant was awarded the Army Commendation Medal with “V” Device for action on 2 July 1968.  These orders state, in part, that “Observing an enemy soldier moving through a dense woodline toward a bunker position, Specialist A______ courageously stood erect and fired his weapon between the soldier and his objective.  When the insurgent realized he could not successfully reach the fortification, he rushed back toward the woodline.  Immediately, Specialist A_____ grabbed a grenade launcher and blocked all avenues of escape with accurate fire….”

5.  There are no orders in the applicant's personnel records which show he was awarded the Purple Heart.  His DA Form 20 (Enlisted Qualification Record) does not list any wounds as a result of hostile action in item 40 (Wounds).  His name is not included on the Vietnam Casualty Roster.  

6.  There are no medical records in the applicant’s military personnel file to show he sustained wounds as a result of hostile action or to show he was treated for wounds as a result of hostile action.  

7.  The applicant was released from active duty on 15 August 1969.  His DD Form 214 for the period ending 15 August 1969 shows he was awarded the Army Commendation Medal (First Award), the “Vietnam Unit Citation,” the National Defense Service Medal, the Vietnam Service Medal, two Overseas Service Bars, the Marksman Marksmanship Qualification Badge with Rifle Bar, and the Republic of Vietnam Campaign Medal with Device (1960).  This discharge document does not list his award of the Army Commendation Medal with “V” Device and the Bronze Star Medal with “V” Device.  He subsequently served in the Army National Guard.  

8.  The applicant provided six letters of support from fellow Soldiers at the time of the incident.  The individuals stated, in effect, that the applicant was wounded in the neck by a bullet while he was assigned to Company A, 2nd Battalion, 60th Infantry, 9th Infantry Division in Vietnam.  

9.  The applicant provided personal statements in support of his claim.  He states that he served during conflict while assigned to Company A, 2nd Battalion, 60th Infantry, 9th Infantry Division in Vietnam.  He alleges he was wounded by being shot in the neck during military actions on 8 June 1968 as described in the general orders for award of the Bronze Star Medal with “V” Device.  He states he pulled the bullet out and his assistant gunner treated his wound.  Later, his open wound was bandaged by a medic but no documentation was made during the action.    

10.  On 22 January 2008, his current Deputy Brigade Commander submitted a Personnel Action recommending that a Purple Heart be awarded to the applicant for being injured by direct enemy contact on 8 June 1968.  

11.  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, and the medical treatment must have been made a matter of official record.  Paragraph 2-8b(2) states that for the purpose of considering an award of the Purple Heart, a “wound” is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.  The regulation states that the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.  

DISCUSSION AND CONCLUSIONS:

1.  There are no orders which authorize award of the Purple Heart to the applicant.  

2.  General orders show he was awarded the Bronze Star Medal with “V” Device for action on 8 June 1968.  However, the orders do not indicate he was wounded as a result of hostile action in Vietnam.  

3.  The applicant states that he was wounded in the neck during military actions in Vietnam on 8 June 1968, that his wound was treated by his assistant gunner and, that his wound was later bandaged by a medic.  By regulation, in order to award the Purple Heart it is necessary to establish that a Soldier was wounded in action, that the wound required treatment by medical personnel, and the treatment record must have been made a matter of official record.  

4.  However, there are no medical documents available which indicate the applicant was wounded as a result of hostile action and his name is not listed on the Vietnam Casualty Roster. 

5.  The statements submitted in support of the applicant’s claim were carefully reviewed.  Regrettably, these documents alone is not sufficient to meet the regulatory burden of proof necessary to support 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:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action 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. 




      ______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)                                         AR20080011532



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ABCMR Record of Proceedings (cont)                                         AR20080011532



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