IN THE CASE OF:
BOARD DATE: 20 November 2008
DOCKET NUMBER: AR20080013735
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 award of the Purple Heart.
2. The applicant states that he received shrapnel wounds while serving in Vietnam but he did not receive the Purple Heart. He contends that in May 1968 he was wounded in his left arm, face, and left hand during mortar attacks.
3. The applicant provides a Report of Consultation, dated 18 November 1971; a Report of Operation, dictated on 19 November 1971; an undated eyewitness statement from a fellow Soldier at the time in question; and a copy of his DD Form 214 (Report of Transfer or Discharge) 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 enlisted on 21 October 1966 for a period of 3 years. He served as an artilleryman in Vietnam from 28 January 1968 through 27 August 1969 and was released from active duty on 28 August 1969.
3. The applicants DD Form 214 does not show the Purple Heart as an authorized award.
4. There is no evidence in the available records which show that the applicant was awarded the Purple Heart or was wounded as a result of hostile action in Vietnam.
5. The applicant's DA Form 20 (Enlisted Qualification Record) does not show entitlement to the Purple Heart and item 40 (Wounds) on his DA Form 20 is blank. The applicant's name does not appear on the Vietnam Casualty Roster.
6. In support of his claim, the applicant provided a 1971 Report of Consultation which states, in pertinent part, that he [the applicant] states that he received shrapnel wounds 2 1/2 yrs. [years] ago in Vietnam to his left index finger. He provided a 1971 Report of Operation which shows that fragment was removed from his left hand.
7. The applicant also provided an eyewitness statement from a fellow Soldier at the time in question. He attests that in May 1968 bullet fragments hit the applicant in the back of his shoulder during a massive ground attack. He also states that in July 1968 the applicant received shrapnel in his left hand and head during a mortar attack.
8. 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:
There is no evidence of record which shows that the applicant was wounded as a result of hostile action in Vietnam. The 1971 medical documentation provided by the applicant does not show that the fragment in his left hand was the result of hostile action in Vietnam. In the absence of orders or other evidence of record showing that the applicant was injured or treated for wounds as a result of hostile action in Vietnam, the eyewitness statement provided by the applicant is not sufficient as a basis for award of the Purple Heart. Regrettably, there is insufficient evidence on which to base 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.
________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) AR20080013735
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ABCMR Record of Proceedings (cont) AR20080013735
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