IN THE CASE OF:	  

		BOARD DATE:	        12 NOVEMBER 2008

		DOCKET NUMBER:  AR20080013726 


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 that he be awarded the Purple Heart.

2.  The applicant states that he qualified for award of the Purple Heart and did not do the required paperwork at the time to receive it; however, his medical records should reflect that he sustained two cuts to his left leg during a rocket attack in approximately March of 1970.  He goes on to state that he was investigating an aircraft accident in another company when the base came under a rocket attack and in an attempt to get to his aircraft before it was hit, he ran into razor wire in the dark and sustained two three inch cuts to his left leg.  He further states that he went to the flight clinic for treatment and his records should corroborate his injuries and treatment.

3.  The applicant provides a one-page statement of the events surrounding his injury and treatment.

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 enlisted in St. Louis, Missouri on 10 June 1968 for a period of 2 years under the warrant officer flight training enlistment option.  He completed his basic training at Fort Polk, Louisiana and was transferred to Fort Wolters, Texas to undergo his warrant officer flight training.  He completed his training at Fort Wolters and was transferred to Hunter Army Airfield, Georgia for additional training.  He completed his warrant officer candidate training and was honorably discharged in the pay grade of E-5 on 15 June 1969 to accept an appointment as a United States Army Reserve (USAR) warrant officer with a concurrent call to active duty. 

3.  He was appointed as a USAR warrant officer one (WO1) rotary wing aviator on 16 June 1969, with a concurrent call to active duty.  He was transferred to Vietnam on 19 July 1969 for assignment to the 128th Aviation Company as a rotary wing aviator.

4.  On 30 August 1969, he was appointed on orders to be a recorder of an Officer Investigating Board of an aircraft accident of a CH47A assigned to the 205th Aviation Company.

5.  The applicant was promoted to the rank of chief warrant officer two (CW2) on 16 June 1970 and on 14 July 1970, he departed Vietnam for assignment to Fort Riley, Kansas, where he remained until he was honorably released from active duty (REFRAD) on 24 December 1970, due to the Department of the Army message directing the early release of warrant officer aviators.  He had served 2 years, 6 months and 15 days of total active service and was awarded the National Defense Service Medal, the Republic of Vietnam Campaign Medal, the Vietnam Service Medal with four bronze service stars, the Air Medal with Numeral "30", the Bronze Star Medal, the Good Conduct Medal, the Army Aviator Badge, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal - First Class Unit Citation. 

6.  A review of the applicant's official records and the Vietnam Casualty Listing fails to show any indication that the applicant was wounded/injured as a result of enemy action or that he was ever reported as a casualty.  The applicant's medical records were not available for review by the Board as they are on loan to the Department of Veterans Affairs in St. Louis, Missouri.

7.  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.

8.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided, in pertinent part, for award of the Purple Heart.  The regulation stated that authority to award the Purple Heart was delegated to hospital commanders.  Further, it directed that all personnel treated and released within 24 hours will be awarded the Purple Heart by the organization to which the individual is assigned.  Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam will be awarded the Purple Heart directly by the hospital commander rendering treatment.

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant's claim that he was injured during an enemy rocket attack in Vietnam is not in doubt, there simply is no evidence in the available records to substantiate his claim.

2.  Therefore, in the absence of evidence to show that he was wounded /injured as a result of enemy action, that he was treated for such injuries and the treatment of those injuries was made a matter of record, there appears to be no basis to award him the Purple Heart at this time.

3.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ___X_____  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _ XXX  _______   ___
               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)                                         AR20080013726



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ABCMR Record of Proceedings (cont)                                         AR20080013726



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