IN THE CASE OF:	   

		BOARD DATE:	        4 December 2008

		DOCKET NUMBER:   AR20080014156 


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, in effect, that he was wounded by a satchel charge while on Landing Zone Carol Marie but did not receive the Purple Heart for unknown reasons.  He concludes that a comrade who was in the same foxhole at the same time received the Purple Heart award.

3.  The applicant provides three statements from fellow Soldiers at the time in question, a Department of Veterans Affairs Rating Decision, DD Form 214 (Armed Forces of the United States Report of Discharge or Transfer), copies of two newspaper articles, and orders for the Army Commendation Medal in support of this 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 was inducted on 10 October 1968.  He arrived in the Republic of Vietnam on 16 March 1969 and was assigned to Battery C, 6th Battalion,   29th Artillery, 4th Infantry Division as a field artillery crewman.  On 9 July 1970, he was relieved from active duty in the rank of corporal after serving 1 year and 
9 months of creditable active service with no lost time.  

3.  There is no evidence in the available records which show the applicant was awarded the Purple Heart or was wounded as a result of hostile action in the Republic of Vietnam.

4.  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.

5.  The applicant provides a Department of Veterans Affairs Rating Decision which shows 10 percent service connected disability was granted for tinnitus.

6.  The newspaper articles provided by the applicant make reference to the applicant's award of the Army Commendation Medal and to a military operation conducted by an element of the 4th Infantry Division.

7.  The applicant provides a letter of support, dated 16 February 2008, from a Soldier who served with him in the Republic of Vietnam.  The supporting statement describes the events and indicates the author received the Purple Heart for bleeding and ruptured eardrums sustained on 7 July 1969.

8.  The applicant provided a second statement from a fellow Soldier, dated 
25 November 2003, which states the applicant sustained injuries to his ears from an enemy ground forces sapper attack on or about 7 July 1969.  The author contends the applicant was evacuated to the rear and after treatment at Ankhe Military Hospital, he was reassigned to base camp as a ration break down and resupply NCO due to his injuries.

9.  The applicant provides a third statement from a fellow Soldier, dated 
24 November 2003, which states, in effect, the applicant was reassigned to a resupply section after being injured in July 1969.  The author continues that when he assumed command the applicant had been given a profile and was not to serve in a forward area.  The author concludes it was his understanding that the applicant had eardrum damage from sachet charges or some type of explosions.

10.  Headquarters 4th Infantry Division General Orders Number 6155, dated      27 September 1969, awarded the applicant the Army Commendation Medal for heroism in connection with military operations against an armed hostile force in the Republic of Vietnam on 7 July 1969.  The award citation does not mention the applicant was wounded as a result of hostile action.

11.  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 military 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 should be awarded the Purple Heart was carefully considered.

2.  The eyewitness statements provided by the applicant were carefully considered.  Unfortunately, statements prepared over 30 years after the fact without corroborating evidence are insufficient for award of the Purple Heart.

3.  Although the applicant contends he was wounded on 7 July 1969, there is no evidence in the available records which shows he was wounded as a result of hostile action while in the Republic of Vietnam.  In the absence of any other evidence which shows the applicant was wounded or treated for wounds as a result of hostile action, 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.




      ___________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)                                         AR20080014156



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ABCMR Record of Proceedings (cont)                                         AR20080014156



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