IN THE CASE OF:
BOARD DATE: 18 December 2008
DOCKET NUMBER: AR20080015342
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 was thrown in the air by the blast of a 122 mm rocket during an attack on his camp in the Republic of Vietnam. He was knocked unconscious and received a concussion and a hearing loss. He is now certified as 100 percent disabled by the Department of Veterans Administration (DVA).
3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 23 June 1969; and copies of his Standard Forms (SF) 513 (Clinical Record - Consultation Sheet), dated 24 and 26 February 1968 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 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's records show that he enlisted in the Regular Army for a period of 3 years on 24 June 1966. He completed basic combat and advanced individual training and was initially awarded military occupational specialty (MOS) 71H (Personnel Administration Clerk) and was later awarded MOS 84B (Photographer). He was honorably released from active duty on 23 June 1969 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining military service obligation. The highest rank/grade he attained during his military service was specialist five (SP5)/pay grade E-5.
3. The applicants records show he served in the Republic of Vietnam during the period 17 February 1967 to 13 February 1968. He was assigned to the 341st Aviation Detachment, 25th Aviation Battalion.
4. Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), of the applicants DD Form 214 shows he was awarded the National Defense Service Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Vietnam Service Medal with 3 bronze service stars, the Army Commendation Medal, and the Republic of Vietnam Campaign Medal with Device (1960). Item 24 does not show award of the Purple Heart.
5. Item 40 (Wounds) of the applicants DA Form 20 (Enlisted Qualification Record) shows a blank entry. Furthermore, the applicant's name is not shown on the Vietnam Casualty Roster.
6. There are no general orders in the applicant's records that show he was awarded the Purple Heart.
7. The applicant's complete medical records are not available for review with this case. However, the applicant submitted copies of his SF 513 as follows:
a. In his SF 513, dated 24 February 1968, the applicant stated that a 122 mm rocket exploded near him 3 weeks earlier and that he suffered from pain in his right ear. This form also shows that the applicant's examination showed normal canal, drum, and ear solution present. The attending physician prescribed the applicant pain medication and recommended he visits the Ear, Nose, and Throat (ENT) clinic.
b. In his SF 513, dated 26 February 1968, the applicant stated that he suffered from residual headache and earache as a result of a rocket explosion. The attending physician stated that his ENT examination was normal.
8. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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:
The applicant's contention that he is entitled to award of the Purple Heart and the supporting evidence he provided was carefully considered. However, there are no general orders that show he was awarded the Purple Heart; there is no evidence in his service personnel records that show he was wounded or injured as a result of hostile action or treated for such wounds; and his name is not listed on the Vietnam Casualty Roster. In the absence of documentation and corroborating evidence that shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon 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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