IN THE CASE OF:
BOARD DATE: 30 October 2008
DOCKET NUMBER: AR20080010538
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.
2. The applicant states that he was wounded in his right foot in Vietnam. He receives Department of Veterans Affairs (VA) compensation for that wound. The Purple Heart should have been included on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and the medal should have been sent to him.
3. The applicant provides a copy of his DD Form 214 and a copy of his VA Outpatient Medical Treatment Information Card, 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 was inducted into the Army of the United States on 29 March 1968. He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).
3. The applicant arrived in Vietnam and was assigned to Company C, 5th Battalion, 7th Cavalry on 9 September 1968. He was reassigned to Company B, 5th Battalion, 7th Cavalry on 1 October 1968.
4. The applicant's records contain an order indicating he was reassigned to Medical Hold Company, 106th General Hospital (Japan) on or about 29 April 1969.
5. Item 38 (Record of Assignments) on the applicant's DA Form 20 (Enlisted Qualification Record) does not indicate his departure from Vietnam. His DD Form 214 shows he departed Vietnam on 15 July 1969.
6. The applicant was honorably released from active duty on 30 March 1970. His DD Form 214 shows he was awarded one overseas service bar, the National Defense Service Medal, the Combat Infantryman Badge, the Sharpshooter Marksmanship Qualification Badge with Rifle bar, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), and the Air Medal.
7. Item 40 (Wounds) on the applicant's DA Form 20 does not show he was wounded in action. His name is not listed on the Vietnam Casualty Roster.
8. The applicant's separation physical shows he received a fragment wound to his right foot in Vietnam. His service medical records are not available.
9. Army Regulation 600-8-22 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's separation physical is accepted as evidence to show that he was wounded. However, that document does not indicate how the wound was incurred. There is no other evidence of record to indicate that his wound was the result of hostile action.
2. The fact the applicant is drawing VA compensation for a wound to his foot indicates that his wound was service connected but by itself is not an indicator that the wound was incurred as a result of hostile action.
3. Regrettably, there is insufficient evidence on which to base award of the Purple Heart at this time.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____XX____ __XX______ ____XX____ 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.
_______XXXX_______________
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) AR20080010538
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ABCMR Record of Proceedings (cont) AR20080010538
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