IN THE CASE OF:	  

		BOARD DATE:	  6 January 2009

		DOCKET NUMBER:  AR20080016968 


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 (PH).  

2.  The applicant states, in effect, he never received the PH for being wounded by the Viet Cong while serving in the Republic of Vietnam (RVN).  

3.  The applicant provides a self-authored statement and third-party statement 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 that he enlisted in the Regular Army and entered active duty on 16 October 1967, and was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows he served in the RVN from 4 May 1968 through 3 May 1969.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company B, 4th Battalion, 503rd Infantry Regiment, performing duties in MOS 11B as a rifleman and grenadier.  

4.  Item 40 (Wounds) of the applicant's DA Form 20 is blank, and the PH is not included in the list of awards contained in Item 41 (Awards and Decorations).  His record is void of any orders or other documents that indicate he was ever wounded in action or awarded the PH by proper authority, and of any medical treatment records that indicate he was ever treated for a combat related wound or injury.  

5.  On 8 October 1970, the applicant was honorably released from active duty (REFRAD), in the rank of PFC, after completing a total of 2 years, 11 months, and 23 days of active military service.  The separation document (DD Form 214) he was issued at the time shows he earned the following awards:  National Defense Service Medal, Air Medal, Vietnam Service Medal, RVN Campaign Medal with 60 Device, Combat Infantryman Badge, Parachutist Badge, Expert Marksmanship Qualification Badge with Rifle Bar, and 2 Overseas Service Bars. The PH was not included in the list of awards on the DD Form 214 and the applicant authenticated the separation document with his signature on the date of his REFRAD.  

6.  The applicant provides a third-party statement from an individual who indicates he served with the applicant in the RVN.  He states that one night he was inside a hooch in a village when he heard a weapon fire, at which time he came out of the hooch and saw the applicant on the ground unconscious, suffering from a head wound.  

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 being wounded in action in the RVN and the third-party statement he provided were 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.  

3.  The applicant's 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 head wound the applicant suffered referred to in the third-party statement 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.  

4.  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.  

5.  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)                                         AR20080016968



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ABCMR Record of Proceedings (cont)                                         AR20080016968



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