IN THE CASE OF:	 

	BOARD DATE:	 23 December 2008 

	DOCKET NUMBER:  AR20080015641 


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 correction of his military records to award him the Purple Heart for injuries sustained while serving in the Republic of Vietnam.

2.  The applicant states that while he was on perimeter guard in the Republic of Vietnam, he was informed of sappers penetrating the defense wire.  When he discharged his rifle it blew up in his hands.

3.  The applicant provides a copy of his Department of Veterans Affairs (VA) rating decision, dated 20 February 1998.

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.  On 2 October 1969, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 31M (Radio Relay and Carrier Attendant).   

3.  On 29 April 1970, the applicant was assigned for duty as a radio relay attendant with the 16th Signal Battalion in Europe.

4.  On 23 June 1970, the applicant was discharged for the purpose of immediate reenlistment.  

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 lists his awards as the National Defense Service Medal, Expert Marksmanship Qualification Badge with Rifle [M-16] Bar, and the Sharpshooter Marksmanship Qualification Badge with Rifle [M-14] Bar.

6.  On 24 June 1970, he reenlisted for a period of three years and was subsequently reassigned to the Republic of Vietnam.

7.  On 7 September 1970, the applicant was assigned for duty as a radio relay and carrier attendant with the 588th Signal Company, 63rd Signal Battalion in the Republic of Vietnam.  He served in this position until his return to the United States on 15 August 1971.

8.  On 13 October 1971, the applicant was assigned for duty as a senior radio relay operator with the 3rd Battalion, 68th Air Defense Artillery Brigade at Fort Bliss, Texas.  On 20 March 1972, he was reassigned to the 6th Battalion, 61st Air Defense Artillery Brigade at Fort Bliss.

9.  On 11 September 1972, the applicant was discharged with a characterization of service of under other than honorable conditions discharge.  The specific facts and circumstances surrounding the applicant's discharge are not contained in the available records.  However, the DD Form 214 contained in his records show that his discharge was reviewed by the Department of Defense Discharge Review Program (Special) which subsequently issued the applicant an honorable discharge.  His characterization of service is honorable.  He had completed
2 years, 11 months, and 10 days of creditable active duty service.

10.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 lists his awards as the Army Commendation Medal, Vietnam Service Medal with
3 bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), and the Expert Marksmanship Qualification Badge with Rifle Bar.  It does not show award of the Purple Heart.

11.  Item 40 (Wounds) of the applicant’s Enlisted Qualification Record (DA Form 20) is blank.

12.  The applicant’s name is not listed on the Vietnam Casualty Roster.

13.  The VA rating decision, provided by the applicant, shows that he was awarded service-connection for an injury to his right hand.  The basis for this was an entry in his service medical records stating, “…M-16 blew up.”  No specific injury was reported and x-ray showed no fracture or retained fragments.  His separation examination dated August 1972 indicated that he had scars on the 4th and 5th knuckles of his right hand as the only significant disability.  Subsequent medical records show no right hand abnormality or disability related to the in-service trauma.

14.  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 his rifle blew up in his hands while he was on perimeter guard in the Republic of Vietnam.

2.  The applicant's name is not listed on the Vietnam Casualty Roster.  

3.  The evidence provided by the applicant shows that he had an injury to the knuckles of his right hand; however, it does not substantiate that this injury occurred as a direct result of enemy action.  

4.  In the absence of a record of medical treatment for a wound sustained as the result of enemy action, this situation does not meet the regulatory requirements for award of the Purple Heart.

5.  Therefore, the applicant's request for award of the Purple Heart should be denied.

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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080015641



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