IN THE CASE OF:
BOARD DATE: 13 November 2008
DOCKET NUMBER: AR20080014677
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 for an injury documented in his medical records, dated 29 January 1971.
2. The applicant states that his shrapnel wound was never submitted for recognition by his command. He alleges that he sustained the wound in a battle situation and deserves the award.
3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a medical document.
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 29 May 1968 for a period of three years. At the completion of basic combat training and advanced individual training (AIT), he was awarded military occupational specialty (MOS) 45F (artillery mechanic). He was later awarded primary MOS 13B (field artillery crewman). His highest grade attained was specialist four, E-4.
3. He served in Vietnam from 10 January 1969 to 12 April 1970.
4. The applicant provided a medical document which indicates he was treated on 29 January 1971 and that he had an "old shrapnel wound."
5. There are no orders in the applicant's personnel records which show he was awarded the Purple Heart. His DA Form 20 (Enlisted Qualification Record) does not list any wounds as a result of hostile action in item 40 (Wounds) and the Purple Heart is not listed in item 41 (Awards and Decorations). His name is not included on the Vietnam Casualty Roster.
6. The applicant was released from active duty on 28 May 1971. His DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal with two bronze service stars, the Republic of Vietnam Campaign Medal with Device (1960), two Overseas Service Bars, and the Sharpshooter Marksmanship Qualification Badge.
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. Paragraph 2-8b(2) states that for the purpose of considering an award of the Purple Heart, a wound is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy. The regulation states that the key issue that commanders must take into consideration is the degree to which the enemy caused the injury. The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.
DISCUSSION AND CONCLUSIONS:
1. There are no orders which authorize award of the Purple Heart to the applicant. His name is not listed on the Vietnam Casualty Roster.
2. The Military Awards regulation states the fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not the sole justification for award of the Purple Heart. The degree to which the enemy caused the injury must be considered.
3. The applicants medical document was carefully reviewed. However, it does not verify that the applicant was wounded or injured as a result of hostile action. His medical document shows he had an "old shrapnel wound." The document does not verify that he was treated for that wound. It appears his commander decided the degree to which the enemy caused the applicants injury was insufficient to justify award of the Purple Heart.
4. Therefore, 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.
_______ 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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