IN THE CASE OF:
BOARD DATE: 13 November 2008
DOCKET NUMBER: AR20080014306
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. He also requests, in effect, that his Army National Guard service be reflected on his DD Form 214 (Report of Transfer or Discharge).
2. The applicant states, in effect, that he was wounded in the right knee in May 1970 while in combat in Vietnam and that he still has the shrapnel in the bone. He contends the medic treated his wound and recorded the injury in his records; however, the medic did not x-ray his wound. He points out that the shrapnel was discovered in February 2007 during a knee x-ray. He also requests that his military service reflect the time he spent with the Army National Guard.
3. The applicant provides a VA Form 21-4138 (Department of Veterans Affairs Statement in Support of Claim); a medical record, dated 28 February 2008; orders, dated 1 November 1971; a National Guard Bureau Form 22 (Report of Separation and Record of Service); numerous service personnel records; and a copy of his DD Form 214.
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 in the Regular Army on 24 February 1969 for a period of 3 years. He served as a helicopter repairman in Vietnam and was released from active duty on 5 November 1971.
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 shows 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. The applicant enlisted in the Army National Guard on 3 January 1972. On
2 January 1973, he was honorably discharged from the Army National Guard and transferred to the Standby Reserve Control Group.
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, and the medical treatment must have been made a matter of official record.
8. Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. In pertinent part it states that the DD Form 214 is a synopsis of the Soldiers most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.
DISCUSSION AND CONCLUSIONS:
1. There is no evidence of record which shows that the applicant was wounded as a result of hostile action in Vietnam. Regrettably, there is insufficient evidence on which to base award of the Purple Heart in this case.
2. The DD Form 214 is a "snapshot in time" and is a reflection of the applicant's record of active Army service at the time of his separation from active duty. Since the applicant served in the Army National Guard after his release from active duty, there is no basis for amending his DD Form 214 to show this service.
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.
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