IN THE CASE OF:
BOARD DATE: 11 December 2008
DOCKET NUMBER: AR20080014425
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 suffered a shrapnel wound to his left knee. The Department of Veterans Affairs (VA) has recently conceded this fact, awarding him a zero percent disability rating on 29 August 2007.
3. The applicant provides three DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), one for the period ending 22 February 1967, one for the period ending 20 February 1970, and one for the period ending 27 January 1976; and a VA Rating Decision.
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 was inducted into the Army on 15 February 1967. He was honorably discharged on 22 February 1967 and enlisted in the Regular Army on 23 February 1967. He completed basic training. He was awarded military occupational specialty 57H (Cargo Handler) in June 1967. He was later awarded military occupational specialty 64A (Light Vehicle Driver).
3. The applicant served in Vietnam from on or about 9 July 1967 through on or about 9 July 1968.
4. The applicant's records were apparently lost upon his departure from Vietnam. His DA Form 20 (Enlisted Qualification Record) was reconstructed on 21 August 1968. Item 40 (Wounds) does not show he was wounded in action. Item 41 (Awards and Decorations) does not show he was awarded the Purple Heart.
5. The applicant was honorably released from active duty on 20 February 1970. His DD Form 214 for the period ending 20 February 1970 shows he was awarded the National Defense Service Medal, the Army Good Conduct Medal, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal with Device (1960).
6. The applicant subsequently served in the Regular Army from 1 December 1975 until he was honorably discharged on 27 January 1976.
7. The applicant's name is not listed on the Republic of Vietnam Casualty Roster.
8. The applicant provided a VA Rating Decision, dated 14 March 2008. The VA awarded him service connection for a shell fragment wound to the left knee with a zero percent disability rating. The Rating Decision states, in pertinent part, "Service Treatment Records from February 15, 1967 through October 30, 1975 are negative for treatment or diagnosis of the injury to the left knee. Records note a one time complaint of knee pain with no diagnosis."
9. Army Regulation 600-8-22 (Military Awards) states 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. It is acknowledged that the VA has awarded the applicant service connection for a shell fragment wound to his left knee. However, the Rating Decision also indicated that his service treatment records from 15 February 1967 through 30 October 1975 are negative for treatment or diagnosis of the injury to his left knee. The VA may award service connection for any injury or disease incurred during active military service. The injury or disease need not be combat-related.
2. Regrettably, since there are no service records to corroborate the cause of the applicant's injury or to confirm that he was treated for a wound resulting from hostile action, the Rating Decision is insufficient evidence on which to base award of the Purple Heart.
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 him in service to our Nation. 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) AR20080014425
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