IN THE CASE OF:	  

		BOARD DATE:	 12 February 2009 

		DOCKET NUMBER:  AR20080016571 


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 and its addition to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

2.  The applicant states, in effect, that he should have been awarded the Purple Heart.  In April 1968, while serving in Vietnam, he went into the water to save a young boy that was pretending to be drowning and he felt something puncture his leg.  The boy swam away and he backed up and left the area.  The next day he became very ill and the doctor told him that he had a puncture wound and that he was going to put him in for award of the Purple Heart.  

3.  In support of his application, the applicant provides copies of two pages of his Standard Form 600 (Chronological Record of Medical Care), pages 2 and 3 of his DA Form 20 (Enlisted Qualification Record), and his DD Form 214.

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 military records show that he was inducted into the Army of the United States on 26 September 1966.  He completed basic and advanced individual training and was awarded MOS 36K, Field Wireman.  He served in Vietnam from 29 August 1967 to 29 August 1968. 

3.  The applicant was released from active duty as an overseas returnee, in pay grade E-4, on 29 August 1968 and was transferred to the United States Army Reserve Control Group (Annual Training).  

4.  Entries on the applicant’s DD Form 214, Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) list the following awards:  the National Defense Service Medal, the Good Conduct Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, two overseas service bars, the Marksman Marksmanship Qualification Badge with Rifle Bar, and the Army Commendation Medal.  The Purple Heart is not listed.  

5.  There are no orders in the applicant’s service personnel records that show he was awarded the Purple Heart.  There is also no evidence in his records that shows he was wounded or treated for wounds as a result of hostile action.  His DA Form 20 does not show any entry in item 40 (Wounds) or list the Purple Heart in Item 41 (Awards and Decorations).  

6.  The applicant submits copies of two pages of his Standard Form 600.  He highlighted the date 7 May 1968, which shows he had sustained an abrasion of the lower leg two weeks ago and was having it rechecked.

7.  A review of the Awards and Decorations Computer Assisted Retrieval System records of the applicant's units for the timeframe the applicant served in Vietnam was conducted.  This review failed to show that any orders were published awarding the applicant the Purple Heart.  

8.  The Vietnam Casualty Roster does not show the applicant’s name and there are no medical treatment records available to show how or when he might have been wounded or injured.

9.  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 the 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:

1.  The applicant's claim of entitlement to the Purple Heart and the supporting evidence provided were carefully considered.  However, by regulation, to be awarded the Purple Heart it is necessary to establish that a Soldier was wounded or injured as a direct result of or was caused by enemy action.  There is no evidence of record, and the applicant has not provided sufficient evidence, which shows that he was awarded the Purple Heart or that he was wounded, injured, or treated for wounds or injuries as a result of hostile action in the Republic of Vietnam.  The evidence also does not show he was ever recommended for or awarded the Purple Heart by proper authority.  Therefore, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.

2.  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.  Based on the evidence in this case, the applicant is not entitled to award of the Purple Heart and he is not entitled to have the Purple Heart added to his DD Form 214.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080016571



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1


ABCMR Record of Proceedings (cont)                                         AR20080016571


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1