IN THE CASE OF:	  

		BOARD DATE:	  30 October 2008

		DOCKET NUMBER:  AR20080013208


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 although his medical treatment record indicates his head wound was from a M-16 rifle and was accidental, it in fact was incurred when they were hit by an enemy patrol and engaged in a fire fight.   

3.  The applicant provides medical treatment records in support of his 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.  The applicant's record shows that he was inducted into the Army of the United States and entered active duty on 9 January 1967, and was trained in and awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows he 
served in the Republic of Vietnam (RVN) from 23 June 1967 through 22 June 1968.  Item 40 (Wounds) is blank, and the PH is not included in the list of awards contained in Item 41 (Awards and Decorations).  Item 48 (Date of Audit) shows the applicant last audited the DA Form 20 on 29 July 1968.

4.  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 and/or of medical treatment records showing he was treated for a combat related wound or injury.

5.  On 18 December 1968, the applicant was honorably released from active duty (REFRAD) in the rank of specialist four (SP4) after completing 1 year, 11 months, and 10 days of active military service.  The separation document (DD Form 214) he was issued at the time shows, in Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), that he earned the following awards during his active duty tenure:  National Defense Service Medal, Bronze Star Medal with “V” (Valor) Device, Vietnam Service Medal, RVN Campaign Medal, Combat Infantryman Badge, Expert Marksmanship Qualification Badge with Rifle Bar, and 2 Overseas Service Bars.  The PH in not included in the list of awards in Item 24 and the applicant authenticated the DD Form 214 with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his REFRAD.

6.  The applicant provides a Chronological Record of Medical Care (SF 600) that shows that on 7 April 1968, he was treated for a head would that resulted from a M-16 rifle round that grazed the side of his head.  He also provides a Clinical Record (SF 513), dated 8 April 1968, which also shows he was treated for this wound.  Both medical treatment records contain statements indicating this wounding was accidental.

7.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant's name is not included on the roster.  A review of the DA Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch, United States Army Human Resources Command (HRC), which is a web based index containing general orders issued between 1965 and 1973 for the Vietnam era was also completed.  There were no PH awards orders pertaining to the applicant on ADCARS.

8.  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 in order to award a PH there must be evidence that a member was wounded or injured as a result of enemy action.  The wound or injury for which the PH is being awarded must have required treatment by military medical personnel and this treatment must be supported by medical treatment records that were made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to the PH based on being wounded in action in the RVN was carefully considered.  However, by regulation, in order to support award of the PH, there must be evidence confirming that the wound for which the award is being made was received as a direct result of or was caused by enemy action, that the wound required treatment by military medical personnel, and a record of this treatment must have been made a matter of official record.

2.  The applicant provides a SF 600 and a SF 513, which both show he was treated for a head wound he received in the RVN on 5 April 1968, which resulted from an accidental firing of an M-16 rifle.  Notwithstanding the applicant’s claim that they were engaged in action with enemy forces at the time he was wounded, the evidence of record is void of any medical treatment record or other documents or record that corroborate this claim.  In addition, there are no medical treatment records on file confirming he was ever treated for a combat related wound or injury, and his 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.

3.  Further, Item 40 of the applicant’s DA Form 20 is blank, which indicates he was never wounded in action, and the PH is not included in the list of awards contained in Item 41.  The applicant last audited the DA Form 20 on 29 July 1968, subsequent to his departure from the RVN.  In effect, his audit was his verification that the information contained on the record, to include the Item 40 and Item 41 entries, was correct at that time.  The PH is also not included in the list of awards contained in Item 24 of 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 contained on the DD Form 214, to include the list of awards in Item 24, was correct at the time the separation document was prepared and issued.  Finally, his name is also not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties, and there are no PH orders pertaining to him on the ADCARS.

4.  Absent any evidence of record to corroborate the fact that the head wound for which the applicant was treated in April 1968 was received as a result of enemy action, or that confirms he was wounded in action in the RVN and/or awarded the PH by proper authority while serving on active duty, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Therefore, it would not be appropriate or serve the interest of all those who served in the RVN and faced similar circumstances to grant the requested relief.

5.  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 related to award of the PH.

6.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices he made 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)                                         AR20080013208



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ABCMR Record of Proceedings (cont)                                         AR20080013208



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