IN THE CASE OF:	  

		BOARD DATE:	  24 September 2008

		DOCKET NUMBER:  AR20080012338 


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, award of the Purple Heart (PH).

2.  The applicant states, in effect, that while serving in the Republic of Vietnam (RVN), his base camp came under mortar attack by the enemy, and during this attack, he was wounded.  He claims he sustained an injury to his leg and was knocked unconscious for approximately 30 minutes.  He now requests award of the PH for this combat-related injury.  

3.  The applicant provides the following documents in support of his application:  Self-Authored Letter; Separation Document (DD Form 214); Correction to
DD Form 214 (DD Form 215), dated 28 March 2008; Chronological Record of Medical Care (SF 600); Individual Sick Slip (DD Form 689); Department of Veterans Affairs (VA) Letter, dated 17 March 2008; and National Personnel Records Center Letter, dated 28 March 2008.

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 record shows he was inducted into the Army of the United States and entered active duty on 16 November 1966, and was trained in and awarded military occupational specialty (MOS) 62E (Construction Machine Operator).  

3.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he served in the RVN from 30 March 1968 through 8 November 1968.  Item 40 (Wounds) is blank, and the PH is not included in the list of awards contained in Item 41 (Awards and Decorations).  

4.  The applicant’s record is void of orders or other documents that indicate he was ever wounded in action, or awarded the PH.  There are also no medical treatment records on file that indicate he was ever treated for a combat-related wound or injury.  

5.  On 7 November 1968, the applicant was honorably released from active duty (REFRAD) after completing 1 year, 11 months, and 22 days of active military service.  The DD Form 214 he was issued at the time shows he earned the following awards during his active duty tenure:  National Defense Service Medal; Vietnam Service Medal; Vietnam Campaign Medal; and Army Good Conduct Medal.  The PH is not included in the list of awards contained on his final 
DD Form 214, and the applicant authenticated the separation document with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his REFRAD.  

6.  On 28 March 2008, a DD Form 215 was issued to the applicant that added the Vietnam Service Medal with 4 bronze service stars to the list of awards contained on his DD Form 214.  

7.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant's name was not included on this casualty list.  In addition, a review of the DA Awards and Decorations Computer Assisted Retrieval System (ADCARS), which contains award orders issued during the Vietnam Era, was completed.  There were no PH orders pertaining to the applicant on file in ADCARS.  

8.  The applicant provides a Chronological Record of Medical Care (SF 600) which shows he sustained an open cut to his left leg, which was cleaned and dressed on 16 October 1968.  He also provides an Individual Sick Slip 
(DD Form 689), dated 16 October 1968, which states he injured his knee.  There is no indication on either of these documents that these injuries were received as a result of enemy action.  

9.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that the PH is awarded to any member who has been wounded or killed in action. The awards regulation defines a wound as an injury to any part of the body from an outside force or agent sustained under conditions defined by this regulation.  In order to support awarding a member the PH, it is necessary to establish that the wound for which the award is being made was received as a direct result of, or was caused by enemy action, the wound required treatment by medical personnel.  This treatment must be supported by records of medical treatment for the wound or injury received in action, and must have been made a matter of official record.  The regulation contains examples of wounds or injuries that clearly do not support award of the PH.  Included in these examples are accidental wounding not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.   The applicant’s claim of entitlement to the PH based on wounds he sustained to his leg during combat action was carefully considered.  However, by regulation, in order to award the PH it is necessary to establish that the wound for which the award is being made was received as a result of enemy action.

2.  The evidence of record provides no indication that the applicant was ever wounded in action, or that he was ever treated for a combat-related wound or injury by military medical personnel.  Item 40 of his DA Form 20 is blank, which indicates he was never wounded as a result of enemy action, and the PH is not included in the list of awards contained in Item 41.  

3.  The PH is also not included in the list of awards contained on his DD Form 214, which he authenticated with his signature on the date of his REFRAD.  In effect, his signature was his verification that the information on the separation document, to include the list of awards, was correct at the time the DD Form 214 was prepared and issued.  


4.  In addition, the applicant's name is not included on the Vietnam Casualty Roster, the official list of RVN battle casualties, and there are no PH orders on file for him on ADCARS.  The applicant's record is void of any orders or other 
documents that indicate he was ever recommended for or awarded the PH by 
proper authority while serving on active duty, and there are no medical treatment records on file that show he was ever treated for a combat-related wound or injury.  

5.  Although the applicant provides medical treatment records that show he was treated for a cut to his leg and a knee injury, these documents give no indication that these injuries were received as a result of enemy action.  As a result, absent any evidence confirming he was wounded in action, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Thus, it would not be appropriate, or serve the interest of all those who served in the RVN and who faced similar circumstances, to grant the requested relief in this case. 

6.  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.   

7.  The applicant and all others concerned should know that this action related to award of the PH 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.  

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)                                         AR20080012338



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080012338


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1