IN THE CASE OF:	  

		BOARD DATE:	        13 NOVEMBER 2008

		DOCKET NUMBER:  AR20080014783 


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 the award of the Purple Heart.

2.  The applicant states he was wounded in action during May/June 1968.  He states he never received the Purple Heart for his wound.  He further states he was treated for his wound and the condition is now a service-connected disability with the Department of Veterans Affairs (VA).  He states he still has shell fragments in his left arm.

3.  The applicant provides, in support of his application, copies of his 
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 29 March 1969 and a letter from the VA. 

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 military personnel record shows he initially enlisted in the Regular Army on 2 May 1966 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant was assigned in the Republic of Vietnam during the period from 30 March 1968 to 26 March 1969.

4.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not contain any entries indicating that the applicant received any wounds as a result of hostile or enemy action.

5.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not show the award of the Purple Heart.

6.  On 29 March 1969, the applicant was released from active duty by reason of his being an overseas returnee.   He had completed 2 years, 10 months, and 
28 days of active service that was characterized as honorable.

7.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 does not contain an entry for the Purple Heart.

8.  There are no orders in the applicant's military service records awarding him the Purple Heart.

9.  The applicant's name does not appear on the Vietnam Casualty Listing.

10.  The applicant's service medical records were not available for review.

11.  The undated letter from the VA, submitted by the applicant, notified him that a scar due to a shrapnel wound to his left arm with a retained metal fragment was determined to be service-connected.  However, there was no information in letter concerning the etiology of wound.

12.  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.  A wound is defined as an injury to any part of the body from an outside force or agent sustained as a result of hostile action.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to the award of the Purple Heart.

2.  The applicant's DA Form 20 does not show he was wounded by hostile or enemy action or that he was awarded the Purple Heart.  There are no orders in his military personnel record showing he was awarded the Purple Heart and his name does not appear on the Vietnam Casualty Listing.

3.  The applicant's service medical records were not available for review.  Therefore, there is no substantiating evidence to verify that the applicant suffered an injury as a result of hostile action, the injury required medical treatment, or that the medical treatment was made a matter of official record.

4.  The VA makes a determination as to whether a medical condition was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine whether a disability was a result of hostile action.  The VA, in accordance with its own policies and regulations, determines if a medical condition is service-connected solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Therefore, the undated letter submitted by the applicant from the VA is not sufficient evidence to show his wound to his left arm was received as a result of hostile action.

5.  In the absence of military records which show that the applicant was wounded or treated for wounds resulting from hostile action, there is insufficient evidence upon which to base award of the Purple Heart in this case.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

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 the applicant 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)                                         AR20080014783





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ABCMR Record of Proceedings (cont)                                         AR20080014783



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