IN THE CASE OF:	  

		BOARD DATE:	        02 December 2008

		DOCKET NUMBER:  AR20080012214 


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 essentially states that he was injured by sniper fire while serving in Vietnam and that he was not aware that he might be eligible for award of the Purple Heart.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a self-authored VA Form 21-4138 (Department of Veterans Affairs - Statement in Support of Claim), dated 1 July 2008; and an undated third-party letter from a person who claimed to have served with the applicant in Vietnam in support of this 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 military records show that he was inducted into the Army of the United States on 19 November 1968.  He completed basic combat and advanced individual training and was awarded military occupational specialty 13A (Field Artillery Basic).  He departed for the Republic of Vietnam on 2 May 1969, and served with Battery C, 2nd Battalion, 319th Artillery, 101st Airborne Division (Airmobile).  He returned to the continental United States on 1 May 1970, and on 18 November 1970, he was honorably released from active duty at Fort Sill, Oklahoma.  The DD Form 214 that he was issued at the time of his release from active duty shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), and the Expert Marksmanship Qualification Badge [with Rifle Bar (M-14)].

3.  The applicant's DD Form 214 does not show that he was awarded the Purple Heart.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) does not contain any entries that indicate he was wounded or injured as a result of hostile action.  Item 41 (Awards and Decorations) of this same document also does not show that he was awarded the Purple Heart.  There are no orders in his military records awarding him the Purple Heart.  Additionally, the applicant’s name is not listed on the Vietnam Casualty Roster.  Further, there is no evidence in his military personnel records which shows that he was wounded or injured as a result of hostile action.

4.  The applicant provided a self-authored VA Form 21-4138, dated 1 July 2008, in which he stated that while serving with Battery C, 2nd Battalion, 319th Artillery, he was on Fire Base Airborne from 13 May 1969 to mid-August 1969.  He also stated, in effect, that a little before dawn in June 1969, he lost the end of his index finger due to sniper fire.  He further stated that he was medically evacuated to a hospital at Cam Rahn Bay, where they treated his index finger and cleaned bone fragments.  Additionally, he stated that he spent 6 to 8 weeks there to make sure there was no infection, then he was sent back to his unit at Fire Base Airborne.

5.  The applicant also provided an undated third-party letter from a person who claimed to have served with the applicant in Vietnam.  This third-party statement essentially stated that a little before dawn in June 1969, the applicant lost the end of his right index finger from what he believed was hostile action.

6.  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 been treated by medical personnel, and the medical treatment must have been made a matter of official records.  Each 
approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire; the wound or injury must have required treatment by military medical personnel; and the record of medical treatment must have been made a matter of official Army records.  A physical lesion is not required, however, the wound for which the award is made must have required treatment by a medical officer and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.  When contemplating an award of the Purple Heart, 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.

7.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart.

2.  The evidence provided by the applicant was carefully considered.  However, 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.

3.  The evidence provided by the applicant, in the form of a self-authored 
VA Form 21-4138, dated 1 July 2008, and an undated third-party statement are not supported or corroborated by the evidence of record.  While the sincerity of the applicant's claim to entitlement to award of the Purple Heart is not in question, the evidence provided by the applicant more than 39 years after his alleged wounding does not prove, by a preponderance of the evidence, that he was wounded or injured as a result of hostile action.

4.  Regrettably, absent evidence which conclusively proves, by a preponderance of the evidence, that he was wounded or injured as a result of hostile action, that his wounds or injuries as a result of hostile action were treated by medical personnel at the time, and that this medical treatment was made a matter of official record, there is insufficient basis upon which to award the Purple Heart to the applicant in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  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 the United States during the Vietnam War.  The applicant and all Americans should be proud of his service in arms.



      ________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)                                         AR20080012214



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ABCMR Record of Proceedings (cont)                                         AR20080012214



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