IN THE CASE OF:	  

		BOARD DATE:	  	  11 December 2008

		DOCKET NUMBER:  AR20080015820 


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, in effect, award of the Purple Heart (PH). 

2.  The applicant states, in effect, that he was never treated for the injury he received while in Vietnam.  He was injured as a result of a land mine; he was cleaned up and sent back to the war zone.  He adds that he was treated badly during the war.  After returning home from Vietnam, he just wanted to run and hide.  He spoke to two of the people who were in the tank with him and they received the PH.  He was sitting right where the bomb hit the tank and he was injured the most, but he received nothing. 

3.  The applicant provides no additional documents 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 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 record shows that he was inducted into the Army of the United States and entered active duty on 4 September 1968.  He was trained in and awarded military occupational specialty 11D (Armor Reconnaissance Specialist).

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows he served in the Republic of Vietnam (RVN) from 8 February 1969 through 1 February 1970.  Item 40 (Wounds) is blank, and the PH is not included in the list of awards contained in Item 41 (Awards and Decorations).  Item 48 (Date of Audit) shows the applicant last audited the DA Form 20 on 10 March 1970.

4.  The applicant's record is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority and/or of medical treatment records showing he was treated for a combat related wound or injury.

5.  On 1 July 1970, the applicant was honorably released from active duty (REFRAD) in the rank of specialist four (SP4) after completing 1 year, 9 months, and 28 days of active military service.  The separation document (DD Form 214) he was issued at the time shows, in Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), that he earned the following awards during his active duty tenure: The National Defense Service Medal, the Vietnam Service Medal, the RVN Campaign Medal, the Combat Infantryman Badge, the Expert Marksmanship Qualification Badge with Rifle bar (M-14) ,the Sharpshooter Marksmanship Qualification Badge with Rifle bar (M-16), the 2nd Class Gunner (Machine Gun M-60) and 2 Overseas Service Bars.  The PH is not included in the list of awards in Item 24 and the applicant authenticated the DD Form 214 with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his REFRAD.

6.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant's name is not included on the roster.  A review of the DA Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch, United States Army Human Resources Command (HRC), which is a web based index containing general orders issued between 1965 and 1973 for the Vietnam era was also completed.  There were no PH awards orders pertaining to the applicant on ADCARS.

7.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to award a PH there must be evidence that a member was wounded or injured as a result of enemy action.  The wound or injury for which the PH is being awarded must have required treatment by military medical personnel and this treatment must be supported by medical treatment records that were made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to the PH based on being wounded in action in the RVN was carefully considered.  However, by regulation, in order to support award of the PH, there must be evidence that a member was  wounded or injured as a direct result of or was caused by enemy action, that the wound required treatment by military medical personnel, and a record of this treatment must have been made a matter of official record.  

2.  There are no medical treatment records on file confirming he was ever treated for a combat related wound or injury, and his record is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty.

3.  Further, Item 40 of the applicant’s DA Form 20 is blank, which indicates he was never wounded in action, and the PH is not included in the list of awards contained in Item 41.  Finally, his name is also not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties, and there are no PH orders pertaining to him on the ADCARS.

4.  Absent any evidence of record to corroborate an injury/wound which the applicant received as a result of enemy action, or that confirms he was wounded in action in the RVN and/or awarded the PH by proper authority while serving on active duty, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Therefore, it would not be appropriate or serve the interest of all those who served in the RVN and faced similar circumstances to grant the requested relief.

5.  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 related to award of the PH.

6.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices he made in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.


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)                                         AR20080015820



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ABCMR Record of Proceedings (cont)                                         AR20080015820



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