IN THE CASE OF:	 

		BOARD DATE:	  6 NOVEMBER 2008

		DOCKET NUMBER:  AR20080014023 


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 feels he met the criteria and should have been awarded the Purple Heart.  He also states that he was involved in a fire fight that killed many of the Soldiers he was with, and he was also wounded. He feels he should be awarded the medal to reflect his involvement with the enemy and his injury.

3.  The applicant also states, in effect, that on 19 November 1967, a grenade blew him back into a one foot foxhole, knocking him out for a few seconds.  He checked for blood and injuries and since he saw no blood he figured he was unharmed.  On 25 November 1967, his armpit was itching and when he reached to scratch it, he noticed of piece of shrapnel sticking out of his right arm pit.  He further states, in effect, that he located a medic at the fire support base and the medic pulled out a 1/4 by 3 inch piece of metal shrapnel from his right armpit and said it looked like he had a Purple Heart coming to him.  He never got a Purple Heart medal for that shrapnel wound and he doubts he was even put in for it.  Since they lost most of their battalion in that battle and they were short of men, they did things in the field, like with him, and never reported it.  He feels his injury deserves the Purple Heart.

4.  In support of his application, the applicant provides an eyewitness account statement and the Combat After Action Report for Headquarters, 173rd Airborne Brigade dated 6 December 1967.

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 records show he enlisted in the Regular Army on 27 June 1966, for 3 years.  He completed his basic combat and advanced training at Fort Polk, Louisiana.  On completion of his training he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant served in Vietnam from 16 January 1967 to 3 January 1968, with Company C, 2nd Battalion, 503rd Infantry, 173 Airborne Brigade.

4.  The applicant was honorably released from active duty, in pay grade E-5, on 27 June 1969, at the expiration of his term of service.  He was credited with 3 years net active service.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, Combat infantryman Badge, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  The Purple Heart is not shown on his DD Form 214.

6.  Item 38 (Record of Assignments), of the applicant's DA Form 20, Enlisted Qualification Record, shows he was placed in a patient status at Letterman General Hospital, San Francisco, California on 3 January 1968.  There is no evidence of record explaining why he was placed in a patient status.

7.  There is no entry in Item 40 (Wounds) of the applicant's DA Form 20 showing he was wounded in action as a result of hostile enemy action.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 contains no entry showing he was awarded the Purple Heart.
8.  There are no orders in the applicant's military personnel records awarding him the Purple Heart.

9.  The Vietnam Casualty List was reviewed to determine if the applicant had been wounded in action while he served in Vietnam.  The applicant's name is not shown in this list.

10.  A search of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS) was made for orders awarding the applicant the Purple Heart. No orders for this award were found in the ADCARS.

11.  The applicant was issued a DD Form 215 (Correction to DD Form 214, Armed Forces of the United States Report of Transfer or Discharge) dated 14 September 1971, deleting the Vietnam Service Medal from his list of awards and adding to his list of awards the following the Good Conduct Medal, Bronze Star Medal, Vietnam Service Medal with one silver service star, Parachutist Badge, and the Senior Parachutist Badge.

12.  The applicant submitted a statement from a former fellow Soldier addressed To Whom It May Concern, dated 30 July 2008, wherein the individual stated he was a member of Company C, 2nd Battalion, 503rd Infantry, 173rd Airborne Brigade with the applicant.  The individual also stated that on 25 November 1967, one day after he and the applicant participated in the 5-day battle for Hill 875, located near Dak To, Vietnam, he witnessed a medic remove a 1/4 by 3 inch piece of shrapnel from the applicant's right armpit.  He believes the applicant received the shrapnel during the battle for Hill 875.

13.  The applicant also submitted a copy of a Combat After Action Report for Headquarters, 173rd Airborne Brigade, pertaining to the attack on Hill 875 in Vietnam.

14.  Army Regulation 600-8-22 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 claim of entitlement to the Purple Heart and the supporting evidence provided were carefully considered.  However, by regulation, in order to support award of the Purple Heart, 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 was treated by medical personnel, and a record of this treatment must have been made a matter of official record.

2.  The applicant contends that he received a piece of shrapnel in his right armpit on 19 November 1967 and was treated by medical personnel on 25 November 1967.  However, given he received medical treatment on 25 November 1967 and appearing to have returned to duty, it must be presumed that military medical officials and the responsible members of his chain of command did not believe the injury in question supported award of the Purple Heart.  

3.  The evidence of record contains no orders, or other documents confirming that the applicant's injury was caused by his participation in direct or indirect combat operations while serving in Vietnam.  There is also no record that shows he was treated by medical personnel or that the treatment was made a matter of official record.  The evidence does not show he was ever recommended for or awarded the Purple Heart by proper authority.  Therefore, absent corroborating evidence confirming the applicant's account of how he received his injury (chain of command supporting letters, etc.), the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.

4.  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.  Based on the evidence in this case, the applicant is not entitled to award of the Purple Heart and he is not entitled to have the Purple Heart added to his DD Form 214.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080014023



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ABCMR Record of Proceedings (cont)                                         AR20080014023


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