IN THE CASE OF:	  

		BOARD DATE:	        15 JANUARY 2009

		DOCKET NUMBER:  AR20080016852 


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 his military records be corrected to show the award of the Purple Heart. 

2.  The applicant essentially states that the Purple Heart is not reflected on his DD Form 214 (Certificate of Release or Discharge from Active Duty).  He also states, in effect, that the administrative clerk that prepared his DD Form 214 failed to look closely at his DA Form 1 [which is actually his DA Form 20 (Enlisted Qualification Record)], which lists a Department of the Army (DA) message which awarded him the Purple Heart.  

3.  The applicant provides his DA Form 20 in support of this 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 military records show that he enlisted in the Regular Army on 10 April 1967.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  He departed for the Republic of Vietnam on 9 September 1967, and was initially assigned to the 4th Battalion, 47th Infantry Regiment where he served in duty MOS 11C.  On 19 December 1967, he was reassigned to Company B, 9th Supply and Transport Battalion, where he served as a vehicle driver and armorer.  He returned to the continental United States on 10 September 1968, and continued to serve on active duty until he retired on 31 August 1990 in the rank and pay grade of first sergeant/E-8.  The DD Form 214 that was issued to him at the time of his retirement shows that he was awarded the Meritorious Service Medal with Second Oak Leaf Cluster, the Army Commendation Medal, the Army Achievement Medal with First Oak Leaf Cluster, the Good Conduct Medal (7th Award), the National Defense Service Medal, the Vietnam Service Medal with One Bronze Service Star, the Noncommissioned Officer Professional Development Ribbon with Numeral "4" Device, the Army Service Ribbon, the Overseas Service Ribbon with Numeral "5" Device, the Combat Infantryman Badge, the Republic of Vietnam Campaign Medal, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

3.  The applicant's DD Form 214 does not show that he was awarded the Purple Heart.  The applicant authenticated his DD Form 214 with his signature, attesting to the accuracy of the information contained on that document.  There are no orders in his military records which awarded him the Purple Heart, and a search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System, a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era, also failed to produce any orders awarding him the Purple Heart.  Item 40 (Wounds) of the applicant’s DA Form 20 and item 4 (Assignment Considerations) of the his DA Form 2-1 (Personnel Qualification Record – Part II) do not have any entries which show that he sustained wounds or injuries as a result of hostile action.  Item 9 (Awards, Decorations, and Campaigns) of his DA Form 2-1 also does not contain an entry showing that he was awarded the Purple Heart. Additionally, the applicant’s name is not listed on the Vietnam Casualty Roster.  The fact that item 41 (Awards and Decorations) of his DA Form 20 has an entry for the Purple Heart was considered, as was the applicant's contention that his DA Form 20 shows that a DA message awarded him the Purple Heart.





4.  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 been treated by military medical personnel, and the medical treatment must have been made a matter of official records.  Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire; the wound or injury must have required treatment by military medical personnel; and the record of medical treatment must have been made a matter of official Army records.

5.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show the award of the Purple Heart.

2.  The fact that item 41 of the applicant's DA Form 20 shows an entry for the Purple Heart was considered; however, this entry was marked through with a solid line, which essentially shows this entry was voided.  This entry did not contain an authority for awarding him the Purple Heart.  The applicant's contention that his DA Form 20 shows that a DA message awarded him the Purple Heart was also considered; however, the applicant misinterpreted an entry in item 39 (Campaigns) of his DA Form 20, which essentially shows the DA message he was referring to actually pertained to the initial announcement of 
the Vietnam Counteroffensive Phase V campaign.  There are no orders in his military records, and the applicant failed to provide any orders which awarded him the Purple Heart.  There is also no evidence in his military records which begins to approach the threshold of proving, by a preponderance of the evidence that he was wounded or injured as a result of hostile action.  There is also no entry for the applicant on the Vietnam Casualty Roster.

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.

4.  While the sincerity of the applicant's claim to entitlement to award of the Purple Heart is not questioned, absent evidence which conclusively proves, by a preponderance of the evidence, that he was wounded or injured as a result of hostile action, that he was treated by medical personnel for wounds or injuries sustained as a result of hostile action, and that this medical treatment was made a matter of official record, there is insufficient basis upon which to correct his military records to show the award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the 
United States throughout his military career, and especially during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.
 



      _______ _  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)                                         AR20080016852



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ABCMR Record of Proceedings (cont)                                         AR20080016852



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