IN THE CASE OF:	 

		BOARD DATE:	  21 OCTOBER 2008

		DOCKET NUMBER:  AR20080012983


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 the Purple Heart be added to his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge.

2.  The applicant states, in effect, that the paperwork was never put into his records before he left Vietnam.  He also states that he is older now and this means something to him now.  He adds that he is in contact with three eye witnesses.  He further states that his brother's Purple Heart was not in his record.

3.  In support of his request, the applicant submitted an addendum to his DD Form 149, Application for the Correction of Military Record; a copy of Permanent Orders 160-02, dated 9 June 2005; verification of in and out patient status at the VA (Department of Veterans Affairs) Hospital in Dallas, Texas; four statements from individuals who allege to have served with the applicant in Vietnam; a copy of a letter he received from the National Personnel Center, St. Louis, Missouri, dated 9 July 2008, and a copy of his DD Form 214.

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 records show he enlisted in the Regular Army on 29 February 1968, for 3 years.  He completed his basic combat and advanced training at Fort Polk, Louisiana.  On completion of his training, he was awarded the military occupational specialty 36K (Wireman).

3.  The applicant served in Vietnam from 30 December 1968 through 21 March 1970, with Headquarters and Headquarters Battery, 3d Battalion, 6th Artillery Regiment; and with Headquarters and Headquarters Battery, and Battery C, 4th Battalion, 60th Artillery, from 22 March 1970 through 2 October 1970.

4.  The applicant was honorably released from active duty in pay grade E-4 on 2 October 1970 under the provisions of Army Regulation 635-200 as an overseas returnee, prior to the expiration of his term of service.  He was credited with 2 years, 7 months, and 4 days active military service.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded:  the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, the Good Conduct Medal, 3 overseas service bars, the Expert Marksmanship Qualification Badge with Automatic Rifle Bar [M-16 Rifle], and the Sharpshooter Marksmanship Qualification Badge with Rifle and Pistol Bar [M-14 Rifle and .45 Caliber Pistol].  The Purple Heart is not shown on his DD Form 214.

6.  There is no entry in Item 40 (Wounds) of the applicant's DA Form 20, Enlisted Qualification Record, showing he was wounded in action as a result of hostile enemy action.  Item 41 (Awards and Decorations), of the applicant's DA Form 20 contains no entry showing he was awarded the Purple Heart.

7.  There are no orders in the applicant's military personnel records awarding him the Purple Heart.

8.  The Vietnam Casualty List was reviewed to determine if the applicant had been wounded in action while he served in Vietnam.  The applicant's name is not shown in this list.

9.  A search of the Awards and Decorations Computer-assisted Retrieval System (ADCARS) was made for orders awarding the applicant the Purple Heart.  No orders for this award were found in the ADCARS.

10.  The applicant submitted a copy of Permanent Orders 160-02 which were prepared by the US Army Human Resources Command, Alexandria, Virginia, on 9 June 2005.  These orders award the Purple Heart (posthumously) to another Soldier with the same last name for wounds he received on 9 February 1968.

11.  The statements the applicant submitted were reviewed.

	a.  In her note, dated 3 April 2008, PGB states the applicant was an in and out patient at the Dallas, Texas, VA Hospital, while he was living in Tioga, Texas.

	b.  In his statement addressed To Whom it May Concern, dated 30 January 2008, DB, the applicant's Vietnam buddy tells of an event during which they rolled over and set off an anti-tank mine.  The applicant was allegedly thrown off the track and had to be lifted back up onto the track.  They were later picked up by an engineer unit and towed back into base camp.  The applicant was allegedly complaining about his back and two or three days later he went home.

	c.  In a second statement addressed To Whom it May Concern, dated 30 January 2008, DB, describes an event which is apparently unrelated to the applicant's request.  In this statement, DB tells of him and the men shooting at deer and themselves coming under enemy fire at the river.  He describes their fright and happiness at getting back to the LZ (landing zone) without anyone getting killed.

	d.  In his statement addressed To Whom it May Concern, dated 8 February 2008, TWB, describes the same event and provided the same details; however, he admits that he was not present and did not experience the event.  He was the normally-assigned driver of the track; however, on that day he had gone into Qui Nhon to the finance center for personal business.  When he got back, the track and the men were back and they were talking about the incident.  The applicant was complaining about his back hurting.

	e.  In his statement addressed To Whom it May Concern, dated 9 February 2008, JLA, describes the same event as described in subparagraph b above and provides basically the same details.  JLA states that he was not present.

12.  Army Regulation 600-8-22 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 by medical personnel, and the medical treatment must have been made a matter of official record.  This regulation also provides that there is no statute of limitations on requests for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  To be awarded the Purple Heart, substantiating evidence must be presented to show that the Soldier was wounded as the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

2.  There is no evidence, and the applicant provided none, to show that he was wounded as the result of hostile action.  The applicant's name does not appear on the Vietnam Casualty Listing.  There were no entries made in his service personnel records to show he was wounded as a result of hostile action and no orders were published to award him the Purple Heart.

3.  The eyewitness statements submitted by the applicant were considered; however, there is no evidence to show that the applicant was awarded the Purple Heart while he served in Vietnam.  These statements also provide insufficient evidence upon which to base award of the Purple Heart to the applicant.

4.  Based on the evidence in this case, the applicant is not entitled to award of the Purple Heart and he is not entitled to have the Purple Heart added to his DD Form 214.

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)                                         AR20080012983



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ABCMR Record of Proceedings (cont)                                         AR20080012983



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