IN THE CASE OF:	  

		BOARD DATE:	  	  23 October 2008

		DOCKET NUMBER:  AR20080014439 


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 was wounded by an anti-tank mine on 22 August 1969.  He also states, in effect, that he received his Purple Heart by mail and it has since been lost.  He continues to state, in effect, that he never received his Purple Heart Certificate.  He finally states, in effect, that he took metal in his left leg and received a back injury.  

3.  The applicant submitted a statement from a witness, a copy of the witness’ Purple Heart certificate, and a copy of his Department of Veteran Affairs Rating Decision, 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 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 record shows that as a member of the California Army National Guard (CAARNG) he was ordered to active duty on 13 May 1968.  He completed basic combat and advanced individual training and was awarded the military occupational specialty (MOS) 11E (Armor Crewman).  The highest rank he attained while serving on active duty was sergeant (SGT)/pay grade E-5. 

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows that he served in the Republic of Vietnam (RVN) from 30 April 1969 to 27 November 1969, performing duties in MOS 11E, Assistant Tank Commander, and that during his RVN tour he was assigned to the 1st Battalion, 10th Cavalry Squadron, 4th Infantry Division.

4.  Item 40 (wounds) of the applicant’s DA Form 20 does not show that the applicant was wounded while he was assigned to the Republic of Vietnam.

5.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows that he earned the following awards during his active duty tenure:  the National Defense Service Medal (NDSM), the Vietnam Service Medal (VSM), the Expert Marksmanship Qualification Badge with Rifle (M-14) and Pistol (.45 Cal) Bars, and the Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) Bar. 

6.  On 12 December 1969, the applicant was released from active duty and returned to state control as a member of the CAARNG after completing a total of 1 year and 7 months on this active duty tour.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Authorized) shows that the applicant was awarded the NDSM, VSM, Republic of Vietnam Campaign Medal, one Overseas Service Bar, Expert Marksmanship Qualification Badge with Rifle (M-14) and Pistol (.45 Cal) Bars, and the Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) Bar.

7.  The applicant submitted a statement from Mr. W______ R. S_______ who states, in effect, that on 22 August 1969 he was driving an armored personnel carrier in which the applicant was manning the 50-caliber machinegun.  He states that they were doing road and bridge security and when they went off the road to get into position a compression mine blew them and their vehicle up.  He continues to state, in effect, that they were injured and medically evacuated to different hospitals.  Mr. S_______ provided a copy of the Purple Heart certificate he received for injures on that date. 

8.  The applicant submitted a copy of his Department of Veteran Affairs decision on his claim for service-connected compensation dated 19 March 2008 in support of his application. 


9.  There are no orders in the applicant’s service personnel record which show that he was awarded the Purple Heart.  

10.  The applicant's name is not listed on The Adjutant General Casualty Division's Vietnam Casualty Roster, as being wounded in action 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 medical personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to correction of his record to show award of the Purple Heart was carefully considered and found to be without merit. 

2.  There are no general orders that show the applicant was awarded the Purple Heart.  There is no evidence in his service personnel records which shows that he was wounded or injured as a result of hostile action or treated for such wounds.  The applicant is not listed on the Vietnam Casualty Roster.  The witness statement alone does not provide an eyewitness account of the applicant being wounded as a result of hostile action.  In the absence of such evidence, there is insufficient basis to grant 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)                                         AR20080014439



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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