IN THE CASE OF:
BOARD DATE: 9 December 2008
DOCKET NUMBER: AR20080012489
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 his records be corrected by adding the award of the Purple Heart.
2. The applicant states that he needs the addition of the Purple Heart because he still has shrapnel in his neck from the Tet Offensive in 1968.
3. The applicant provides a copy of VA Form 21-4138 (Statement in Support of Claim), a self-authored statement, and his separation document (DD Form 214, Armed Forces of the United States Report of Transfer or Discharge).
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 applicants 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 applicants 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 personnel record shows he enlisted in the Regular Army on 27 March 1967. He completed the necessary training and was awarded the military occupational specialty 73C (Finance Specialist).
3. He served with the 9th Administration Company, 9th Infantry Division, in the Republic of Vietnam during the period 1 November 1967 to 29 October 1968.
4. He was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement), St. Louis, Missouri, on 26 March 1970.
5. The applicant's DD Form 214, item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), does not show the award of the Purple Heart.
6. The VA Form 21-4138 and the statement that the applicant submitted contain information concerning his claim for benefits from the Department of Veterans Affairs office.
7. The applicant's records do not contain a copy of his medical record to show he sustained shrapnel in his neck as result of hostile action.
8. A review of the Republic of Vietnam casualty roster does not show the applicant's name listed among those wounded.
9. 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, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his record should be corrected by adding the Purple Heart.
2. There is no evidence in the applicant's records which show he was wounded or injured by shrapnel as a result of hostile action or that he was treated for any wounds. Additionally, his name does not appear on the Republic of Vietnam casualty roster. Therefore, he is not entitled to award of the Purple Heart.
3. The VA Form 21-4138 and the statement that the applicant submitted are noted. However, there is insufficient evidence to award the Purple Heart.
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) AR20080012489
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ABCMR Record of Proceedings (cont) AR20080012489
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