IN THE CASE OF:
BOARD DATE: 4 November 2008
DOCKET NUMBER: AR20080013163
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 a second award of the Purple Heart.
2. The applicant states that he was injured in battle on 24 July 1969 and was awarded the Purple Heart, which appears on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 May 1987. He was injured in battle again on 12 August 1969. He believes the error occurred because when he was wounded in August 1969 he was not medically evacuated to the rear, he was simply bandaged and returned immediately to combat.
3. The applicant provides his DD Form 214 for the period ending 31 May 1987; Army Commendation Medal with "V" Device orders, dated 13 November 1969; a Consultation Sheet, dated 16 August 1969; and a Department of Veterans Affairs Form 21-4138 (Statement in Support of Claim).
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
Counsel makes no additional request.
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. After having had prior service, the applicant enlisted in the Regular Army on 14 June 1961.
3. The applicant arrived in Vietnam for his second tour on or about 25 March 1969.
4. Headquarters, 101st Airborne Division (Airmobile), General Orders Number 13820, dated 13 November 1969, awarded the applicant the Army Commendation Medal with "V" Device for heroism on 24 July 1969. The orders state in part, "During the attack, (the applicant) was struck in the leg by a piece of shrapnel from an exploding mortar round, but despite his wound he continued to supervise his platoon
"
5. Headquarters, 101st Airborne Division (Airmobile), General Orders Number 12285, dated 22 September 1969, awarded the applicant the Purple Heart for wounds received on 12 August 1969.
6. The applicant departed Vietnam on or about 13 March 1970.
7. Item 40 (Wounds) on the applicant's DA Form 20 (Enlisted Qualification Record) shows he was wounded once, on 12 August 1969. His name is listed on the Vietnam Casualty Roster once, for 12 August 1969.
8. The applicant was retired for length of service on 31 May 1987. His DD Form 214 for the period ending 31 May 1987 shows he was awarded only one Purple Heart.
9. Army Regulation 600-8-22 (Military Awards) states 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant was awarded the Purple Heart for the injuries he received on 12 August 1969, not for the injuries he received on 24 July 1969.
2. Nevertheless, the citation for award of the Army Commendation Medal with "V" Device confirms that the applicant was wounded on 24 July 1969. The only question that might arise as far as eligibility for award of the Purple Heart for those wounds is the type of medical treatment he received for those injuries.
3. The available evidence indicates that the applicant has confused and reversed the circumstances surrounding his two injuries. It is reasonable to presume that when he explained, regarding the injuries on 12 August 1969, that he was simply bandaged and returned immediately to combat, he meant the incident that occurred on 24 July 1969, for which he was awarded the Army Commendation Medal for heroism. To be "simply bandaged and returned immediately to combat" is a reasonable description of medical treatment he might have received for those 24 July 1969 wounds.
4. Therefore, any reasonable doubt concerning medical treatment the applicant received for the injuries he received on 24 July 1969 should be resolved in his favor, and he should be awarded the Purple Heart for those injuries.
BOARD VOTE:
___xx_____ __xx______ ___xx_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
a. awarding him a second award of the Purple Heart for wounds received on 24 July 1969;
b. deleting the entry, "PURPLE HEART," from item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 for the period ending 31 May 1987; and
c. adding the entry "PURPLE HEART (2D AWD)" to item 13 of his DD Form 214 for the period ending 31 May 1987.
_______xxxx _ _______ ___
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.
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