IN THE CASE OF:	  

		BOARD DATE:	  	   16 December 2008

		DOCKET NUMBER:  AR20080016296 


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, in effect, that he was injured by a punji stick in 1969 and he was offered the Purple Heart but declined it.  He has now reconsidered and wants the award.

3.  The applicant provides no additional documentary evidence 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 records show that he enlisted in the Regular Army with parental consent on 19 February 1968.  He completed basic training and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank he attained while serving on active duty was the grade of specialist/pay grade E-4.  The applicant was released from active duty on 9 November 1971 and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining military service obligation.

3.  Item 31 (Foreign Service) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam during the period 19 April 1969 through 27 March 1970.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows that during his tour of duty in the Republic of Vietnam, he was assigned to Company B, 1st Battalion, 8th Infantry, 
4th Infantry Division performing duties in MOS 11B (Light Weapons Infantryman).

4.  Item 40 (Wounds) of the applicant's DA Form 20 is blank.  The Purple Heart is not shown in item 41 (Awards and Decorations) of the applicant's DA Form 20.  Item 41 does show award of the National Defense Service Medal, Vietnam Service Medal, Combat Infantryman Badge, Republic of Vietnam Campaign Medal, Overseas Service Ribbon with two bars, Army Commendation Medal, Air Medal, and Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Item 48 (Date of Audit) shows the applicant last audited the DA Form 20 on 
26 September 1970.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he earned the Vietnam Service Medal with one bronze service star, the Combat Infantryman Badge, Republic of Vietnam Campaign Medal, Army Commendation Medal, Air Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Sharpshooter Rifle M-14.  The Purple Heart is not shown in the list of awards and the applicant authenticated this document with his signature in Item 32 (Signature of Member Being Transferred or Discharged) on the date of his release from active duty.

6.  The applicant's name does not appear on the Vietnam Casualty Roster.

7.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS) an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command failed to reveal any orders for a Purple Heart.  

8.  There is no evidence in the available records which show the applicant was ever wounded as the result of a hostile action or was recommended for or awarded the Purple Heart.

9.  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 military medical personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the Purple Heart was carefully considered and determined to be without merit.

2.  There is no evidence in his records that show he was wounded or treated for wounds as a result of hostile action.  The applicant's name is not listed on the Vietnam Casualty Roster.

3.  In the absence of evidence that the applicant 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.  As a result, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.

4.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  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.

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)                                         AR20080016296



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ABCMR Record of Proceedings (cont)                                         AR20080016296



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