IN THE CASE OF:
BOARD DATE: 18 February 2009
DOCKET NUMBER: AR20080013275
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.
2. The applicant states, in effect, that he was never awarded the Purple Heart for shrapnel wounds he received while in combat. He also states, in effect, that his Congressman obtained his medical records which shows he was treated for shrapnel wounds received on 18 February 1968.
3. The applicant submitted 21 pages of his medical records, a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a copy of a DA Form 1 (Morning Report), a copy of his DA Form 20 (Enlisted Qualification Record), and a copy of his Veterans Administration (VA) Rating Decision 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 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 DD Form 214 shows that he was inducted into the Army of the United States on 13 October 1966. He was awarded military occupational specialty (MOS) 94B (Cook). The highest rank he attained while serving on active duty was specialist four/E-4.
3. The applicant's DA Form 20 shows he served in the Republic of Vietnam (RVN) from 22 January 1968 to 5 October 1968, performing duties in MOS 94B and that during his RVN tour he was assigned to the 235th Aviation Company.
4. Item 40 (Wounds) of the applicants DA Form 20 does not show that the applicant was wounded while he was assigned to the RVN.
5. Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows that he earned the following awards during his active duty tenure: the National Defense Service Medal (NDSM), the Vietnam Service Medal (VSM), the Expert Marksmanship Qualification Badge with Rifle Bar (M-14), and the Republic of Vietnam Campaign Medal with Device (1960).
6. The applicant submitted a copy of a DA Form 1 obtained by a member of the U.S. House of Representatives on 14 April 2008 from the National Personnel Records Center which shows he was attached to the U.S. Army Vietnam Patient Company on 18 February 1968.
7. The applicant submitted 21 pages of his medical records obtained by a member of the U.S. House of Representatives on 14 April 2008 which shows that on 19 February 1968 he was struck in the left shoulder the day prior [18 February 1968] by a piece of shrapnel.
8. On 6 October 1968, the applicant was discharged from active duty after serving a total of 1 year, 11 months, and 25 days of active military service.
9. Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicants DD Form 214 does not show award of the Purple Heart.
10. The applicant submitted a copy of his VA Rating Decision, dated 17 January 1973, which shows he was rated for a service-connected disability at 20 percent for shoulder injuries he received when he was struck by a piece of shrapnel on 18 February 1968.
11. The Vietnam casualty roster does not list the applicant as wounded by hostile forces.
12. There are no orders in the applicants service personnel records which show he was awarded the Purple Heart.
13. Army Regulation 600-8-22 (Military Awards) 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he is entitled to correction of his record to show award of the Purple Heart was carefully considered and found to be without merit.
2. The applicant's record shows he was treated for a shrapnel wound he received to the left shoulder while he was deployed in the RVN. Evidence shows that he received a 20 percent disability rating from the DVA for his shoulder wound. There is no evidence in his service personnel records which shows that he was wounded or injured as a result of hostile action or treated for such wounds. The applicant is not listed on the Vietnam casualty roster. In the absence of such evidence, there is insufficient basis to grant award of the Purple Heart in this case.
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) AR20080013275
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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