IN THE CASE OF:
BOARD DATE: 13 JANUARY 2009
DOCKET NUMBER: AR20080016805
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, that block 22c (Foreign and/or Sea Service) on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show that he had 7 months and 20 days of Foreign and/or Sea Service in Vietnam; and award of the Purple Heart.
2. The applicant states that he was not awarded the Purple Heart due to
non-submission of his report by his supporting infantry unit in Vietnam.
3. The applicant provides no additional documentation 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. On 15 May 1970, the applicant enlisted in the Regular Army (RA) in Agana, Guam, for 3 years, in the pay grade of E-1. He successfully completed his training in military occupational specialty (MOS) 11C (infantry indirect fire crewman).
3. The applicant's records do not show his exact dates of his overseas service. However, his records do show that he had served in Vietnam from November 1971 to June 1972.
4. The applicant's records show that he was honorably released from active duty (REFRAD) on 10 July 1973, under the provisions of Army Regulation 635-200, chapter 2, at the expiration of his term of service and he was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.
5. The DD Form 214 that he was furnished at the time of his REFRAD shows that he was awarded the Bronze Star Medal, National Defense Service Medal, Air Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal [with Device (1960)], and one Overseas Service Bar. His DD Form 214 also shows that he had 7 months and 20 days of Foreign and/or Sea Service in Vietnam.
6. A review of the applicant's records does not show that he was ever wounded as a result of hostile action while he was in Vietnam or that orders were ever published awarding him the Purple Heart.
7. A review of the Vietnam Casualty Reference Name Listing does not show that the applicant was wounded as a result of hostile action during his tenure in the Army.
8. 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 medical personnel, and the medical treatment must have been made a matter of official record.
9. Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214. It provides, in pertinent part, that the DD Form 214 will be prepared to reflect an individual's service as it exists on the date of REFRAD or discharge from active duty.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his DD Form 214 should be corrected to show that he had 7 months and 20 days of Foreign and/or Sea Service in Vietnam and that he be awarded the Purple.
2. The applicant's DD Form 214 already reflects in block 22c that he had completed 7 months and 20 days of Foreign and/or Sea Service in Vietnam. Therefore, there is no effective relief that can be granted on this portion of his request.
3. Concerning his request to be awarded the Purple Heart, there is no evidence in the available record, nor has the applicant submitted any evidence, to show that he is entitled to an award of the Purple Heart.
4. A review of the Vietnam Casualty Reference Name Listing does not show that he was wounded as a result of hostile action while he was in the Army and in the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.
5. 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 has failed to submit evidence that would satisfy this requirement.
6. 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.
________XXX______________
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) AR20080016805
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ABCMR Record of Proceedings (cont) AR20080016805
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