IN THE CASE OF:	  

		BOARD DATE:	        15 OCTOBER 2008

		DOCKET NUMBER:  AR20080012315 


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 and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to reflect his service in the Republic of Vietnam (RVN).

2.  The applicant states, in effect, that he cannot give the exact date he was wounded but it was near the time of the Tet Offensive.  He contends that he was attempting to extract a Soldier from a burning truck when the door exploded.  He landed about 10 feet away with the truck door and bumper around him.  He was dazed and cut all over his face, arms, legs, and feet.  The lieutenant asked him if he wanted a Purple Heart and he told the lieutenant he would wait until he was shot instead.  He did not apply for the Purple Heart earlier because he felt he did not have sufficient proof, but an x-ray of his foot taken by the Department of Veterans Affairs (DVA) shows shrapnel in his foot.

3.  The applicant provides a copy of his DD Form 214; a self-authored statement; a copy of his DA Form 20 (Enlisted Qualification Record); and a DVA form showing he is service-connected for 4 conditions, in support of is 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.  On 27 September 1966, the applicant enlisted in the Regular Army for a period of 3 years.  He was trained in, awarded, and served in military occupational specialty (MOS) 12E (Atomic Demolition Specialist).  He attained the grade of specialist five/E-5.  On 9 August 1969, he was released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  On 26 September 1972, he was honorably discharged from the USAR upon completion of his statutory military obligation. 

3.  The applicant's DA Form 20 shows that he served in the RVN from 3 March 1967 through 19 February 1968.  He performed duties as a pioneer, combat construction specialist, and demolition specialist with Companies B and D, 70th Engineer Battalion (Combat).

4.  The applicant's service in the RVN is properly shown on his DD Form 214 in Item 22c (Foreign and/or Sea Service) as "USARV [United States Army Republic of Vietnam] 1 year."

5.  Item 24 of the applicant’s DD Form 214 does not show award of the Purple Heart.  Item 40 (Wounds) of his DA Form 20 does not record any wounds sustained as a result of hostile action.

6.  There are no general orders in the applicant’s records to show he was awarded the Purple Heart.

7.  The applicant's name does not appear on the Vietnam Casualty Roster.

8.  There are no medical records in the available military personnel file that show the applicant sustained wounds as a result of hostile action or that show he was treated for wounds sustained as a result of hostile action.  The applicant provides a report from the DVA showing he is service-connected for a lumbosacral or cervical strain, tinnitus, hearing loss, and paralysis of the sciatic nerve.  None of these conditions show that he was wounded in the RVN as a result of hostile action.


9.  During the processing of this case, a member of the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the United States Army Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any Purple Heart orders on file for the applicant.

10.  Army Regulation 635-5 (Separation Documents), then in effect, prescribed policies and procedures regarding separation documents (DD Forms 214 and 215 (Correction to DD Form 214)).  In pertinent part, it directed that the total active duty outside the continental limits of the U.S. for the period covered by the DD Form 214 and the last oversea theater in which service was performed be entered in Item 22c.  Each entry is verified by the individual's service record.

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.  This regulation further states that there is no time limit on submission of requests for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The applicant performed duty in the RVN from 18 February 1967 through
27 February 1968.  His DD Form 214, Item 22c, properly shows his last overseas theater in which he performed duty as "USARV."  Army regulations, then in effect, directed that the last overseas theater in which service was performed be entered in Item 22c.  There was no authorization for a statement of foreign service in Item 30 (Remarks) of the DD Form 214.  Therefore, there is no basis to change the applicant's DD Form 214 to show his foreign service in Item 30.

2.  There are no general orders and the applicant has not provided a copy of any orders showing he was awarded the Purple Heart.  There is no evidence in his available service personnel records which shows he was wounded or injured as a result of hostile action or treated for such wounds.  A research of ADCARS failed to reveal any Purple Heart orders on the applicant.  At a minimum, if he had been wounded as a result of hostile action or treated for his wounds, his name would appear on the Vietnam Casualty Roster, which it does not.  

3.  The applicant has not provided any medical evidence that he was wounded or injured as a result of hostile action.  He contends that a DVA x-ray shows he has 
shrapnel in his foot; however, he did not provide a copy of the x-ray report.  Even if true, an x-ray report many years later does not substantiate that he was wounded as a result of hostile action.

4.  In the absence of evidence to support the applicant's contentions that he was wounded or injured as a result of hostile action, there is insufficient evidence upon which to base award of the Purple Heart in this case.  Regrettably, the applicant's contentions alone do not provide sufficient evidence to show he was wounded or injured as a result of hostile action.  Therefore, there is no basis to grant award of the Purple Heart. The applicant and all others concerned should 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.

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

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)                                         AR20080012315



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ABCMR Record of Proceedings (cont)                                         AR20080012315



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