IN THE CASE OF:	  

		BOARD DATE:	        20 NOVEMBER 2008

		DOCKET NUMBER:  AR20080014822 


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 that he be awarded the Purple Heart. 

2.  The applicant states, in effect, that he was wounded in Vietnam during a battle at Landing Zone (LZ) X-Ray on 16 November 1965.  He also states that there was no medical care present; therefore, he treated the wound himself.  

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); DD Form 47 (Record of Induction); DA Form 20 (Enlisted Qualification Record); a letter, dated 16 June 2008, from his physician; a letter, dated 22 April 2008, from his attorney for a Department of Veterans Affairs (DVA) claim for post-traumatic stress disorder (PTSD); a self-authored letter, dated 6 February 2008; a VA Form 21-4138 (Statement in Support of Claim), dated 20 May 2008; a letter, dated 19 June 2008, from the National Personnel Records Center in St. Louis, Missouri; an undated document showing he was honorably discharged from the United States Army Reserve on 
31 October 1969; and a letter, dated 22 August 2008, from an attorney to the Army Review Boards Agency in support of this 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 military records show that he was inducted into the Army of the United States on 27 November 1963.  He completed initial entry training and was ultimately awarded military occupational specialty 52B (Power Generation Specialist).  He was then reassigned to the 185th Engineer Company, Granite City, Illinois for his initial permanent duty assignment.  In May 1965, he was reassigned to the 586th Signal Company, Fort Irwin, California.  This unit made a permanent change of station to the Republic of Vietnam on 17 August 1965.  He returned to the continental United States on or about 24 November 1965, and was honorably released from active duty on 26 November 1965.  The DD Form 214 that he was issued at the time of his release from active duty shows that he was awarded the Good Conduct Medal, the Armed Forces Expeditionary Medal, the Expert Marksmanship Qualification Badge with M-1 Rifle Bar, and the Sharpshooter Marksmanship Qualification Badge with M-14 Rifle Bar.

3.  Item 40 (Wounds) of the applicant’s DA Form 20 does not contain any entries that indicate he was wounded or injured as a result of hostile action.  Item 41 (Awards and Decorations) of this same document also does not show that he was awarded the Purple Heart.  There are no orders in his military records awarding him the Purple Heart, and a search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System, a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era, also failed to produce any orders awarding him the Purple Heart.  Additionally, the applicant’s name is not listed on the Vietnam Casualty Roster.  Further, there is no evidence in his military personnel records which shows that he was wounded or injured as a result of hostile action.

4.  The applicant essentially stated that he was wounded in Vietnam during a battle at LZ X-Ray on 16 November 1965.  He also stated that there was no immediate medical care available; therefore, he treated the wound himself.  



5.  The applicant provided a letter, dated 22 April 2008, from his attorney for a DVA claim for PTSD, in which the attorney essentially stated that the applicant was attached to the 1st Battalion, 7th Cavalry Regiment during his time in Vietnam, and that the applicant was wounded in action in a battle in the Ia Drang valley.  This attorney also stated, in effect, that there were so many wounded that there simply was not enough time for medical personnel to attend to all of the wounded and, in the applicant's case, there were no medics available at all to treat his wound.  This attorney further stated that the applicant was wounded by shrapnel on his left hand, and that he was eventually able to stop the bleeding and sewed up the wound himself using a common needle and thread, and that there were no medical personnel to treat his wounds.  Additionally, this attorney states that the Purple Heart would greatly aid the applicant's claim for PTSD.  

6.  The applicant also provided a self-authored statement, dated 6 February 2008, in which he essentially stated that he received shrapnel on 16 November 1965 in his left hand, wrist, and palm, and that the only way he was able to stop the bleeding was to sew it up with a needle and thread.  He also stated, in pertinent part, that he never said anything to anyone of authority since he was within days of going home, and he did not want anything to delay him.  He also provided a VA Form 21-4138, dated 20 May 2008, which essentially stated the same.

7.  Additionally, the applicant provided a letter, dated 16 June 2008, from his physician, who essentially stated that the applicant has been under the care of his office for many years.  The physician also stated that the applicant has a laceration on the ulnar side of the left palm that is one and a half inches long that has existed since he was in Vietnam, and there is evidence that suture repair was not professional. 

8.  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 been treated by military medical personnel, and the medical treatment must have been made a matter of official records.  Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire; the wound or injury must have required treatment by military medical personnel; and the record of medical treatment must have been made a matter of official Army records.



9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart.

2.  The evidence provided by the applicant was carefully considered.  However, 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 this requirement.

3.  The statement from the applicant's physician which essentially stated that the applicant had a laceration scar on the ulnar side of his left palm that is one and a half inches long is not questioned.  However, this physician's statement that the scar existed since the applicant was in Vietnam is speculative at best, and it is more likely than not that the physician was only restating what the applicant stated to him.  

4.  The applicant acknowledged that he treated his alleged wound himself, which shows that he failed to be treated by medical personnel for a wound as a result of hostile action, and that medical treatment was not made a matter of official record, which are two of the three key requirements for award of the Purple Heart that must be met.  The fact that he stated that he treated his wound himself because there were no medical personnel to treat him was noted; however, the evidence provided by the applicant, which is now over 42 years after the date of his alleged wounding, does not begin to approach the threshold of proving, by a preponderance of the evidence, that he was wounded in action.  

5.  While the sincerity of the applicant's claim to entitlement to award of the Purple Heart is not questioned, absent evidence which proves, by a preponderance of the evidence, that he was wounded or injured as a result of hostile action, that he was treated by medical personnel for wounds or injuries that were sustained as a result of hostile action, and that this medical treatment was made a matter of official record, regrettably, there is insufficient basis upon which to award him 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:

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 the United States during the Vietnam War.  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)                                         AR20080014822



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ABCMR Record of Proceedings (cont)                                         AR20080014822



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