IN THE CASE OF:	  

		BOARD DATE:	  29 January 2009 

		DOCKET NUMBER:  AR20080016643 


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 (PH).

2.  The applicant states that he should be awarded the PH based on an injury he received to his right hand during an ambush while on a combat convoy.

3.  The applicant provides photographs showing him with a cast on his right arm 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 he was inducted into the Army and entered active duty on 20 May 1968 and was trained in and awarded military occupational specialty (MOS) 95B (Military Police).  His record confirms he was promoted to specialist four (SP4) on 1 January 1969 and that this is the highest rank he attained while serving on active duty.

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows he served in the Republic of Vietnam (RVN) from 22 October 1968 through 20 August 1969. Item 38 (Record of Assignments) shows that during his RVN tour he was assigned to the 9th Military Police (MP) Company and the 709th Maintenance Battalion of the 9th Infantry Division and performed duties in MOS 95B as a military policeman and senior military policeman.  Item 40 (Wounds) is blank.

4.  The applicant's record contains a Report of Medical Examination (SF 88), dated 4 February 1970, which documents his separation medical examination.  There is no entry on this form that indicates the applicant was wounded or injured as a result of enemy action.  His record is also void of any medical treatment records that indicate he was ever treated for a combat-related wound or injury during his active duty tenure.

5.  On 19 May 1970, the applicant was honorably released from active duty (REFRAD) in the rank of SP4 after completing a total of 2 years of active military service.  The separation document (DD Form 214, Armed Forces of the United States Report of Transfer or Discharge) he was issued shows that during his active duty tenure he earned the Army Commendation Medal, National Defense Service Medal, Bronze Star Medal 2nd Oak Leaf Cluster, and Vietnam Service Medal.  The PH is not included in the list of awards entered on his DD Form 214 and the applicant authenticated this document with his signature on the date of his REFRAD.

6.  The applicant provides two photographs he indicates were taken in the RVN that show him with a cast on his right arm.  He provides no medical treatment records that indicate the injury that resulted in his receiving a cast was the result of enemy action.

7.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam casualty roster.  There was no entry pertaining to the applicant on this list of RVN casualties.

8.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH.  It states, in pertinent part, that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action; that the wound required treatment by military medical personnel; and a record of this medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been awarded the PH based on an injury he received to his right hand during an ambush while on a combat convoy in the RVN was carefully considered.  However, by regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that the wound required treatment by military medical personnel, and a record of this medical treatment must have been made a matter of official record. 

2.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action.  His record is also void of any medical treatment records that indicate he was ever treated for a combat-related wound or injury while serving in the RVN.  Finally, his name is not included on the Vietnam casualty roster, the official DA list of RVN battle casualties.  Absent any evidence of record confirming that the injury the applicant suffered to his right hand was received as a result of enemy action, or that he was ever treated for a combat-related wound or injury while serving in the RVN, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.

3.  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.

4.  The applicant and all others concerned should know that 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)                                         AR20080016643



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ABCMR Record of Proceedings (cont)                                         AR20080016643



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