IN THE CASE OF:	  

		BOARD DATE:	        22 JANUARY 2009

		DOCKET NUMBER:  AR20080018010 


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 that he be awarded the Purple Heart.

2.  The applicant states, in effect, that he received shrapnel wounds to the right leg in Vietnam, while assigned to D Company, 4th Battalion, 503rd Infantry Regiment.  He goes on to state that no paperwork was prepared at the time and that the medic treated him at the time and he refused to be evacuated.  He further states that he continued to battle the enemy because he did not want his family to know he was injured. 

3.  The applicant provides statements from four individuals who claim that they served with the applicant in Vietnam and witnessed his being wounded.  One of the individuals claims to have been the medic.

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 enlisted in Detroit, Michigan on 28 November 1969 for a period of 3 years under the basic training buddy plan.  He completed his basic training at Fort Knox, Kentucky; his advanced individual training at Fort Ord, California; and his airborne training at Fort Benning, Georgia.  Upon completion of training, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman) with a Special Qualification Identifier of "P" to indicate parachutist qualified.  He was subsequently transferred to Vietnam on 22 September 1970 and assigned to Company D, 4th Battalion, 503rd Infantry regiment, 173rd Airborne Brigade.

3.  He departed Vietnam with his unit on 17 August 1971 and was transferred to Fort Campbell, Kentucky, where he remained until he was honorably released from active duty (REFRAD) on 14 March 1973, due to the expiration of his term of service (ETS).  He had served 3 years of total active service and his DD Form 214 issued at the time of his REFRAD shows that he was awarded the National Defense Service Medal, the Bronze Star Medal, the Combat Infantryman Badge, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal Unit Citation.

4.  A review of the applicant's records and the Vietnam Casualty Listing fails to reveal any indication that the applicant was either wounded or that he was reported as wounded/injured.

5.  The third party statements provided by the applicant with his application indicate that they all recall the applicant being wounded when another member stepped on an anti-personnel mine and that the applicant was treated and remained with the unit.  The individual who served as a medic claims that he did treat the applicant and that the applicant requested not to be medically evacuated.  He also states that it was his fault that the treatment was not made a matter of record.

6.  On 13 March 2006, in response to a congressional inquiry on behalf of the applicant, officials at the Military Awards Branch, Human Resources Command - Alexandria, Virginia informed the Member of Congress that there was no evidence in the available records and the Vietnam casualty files that showed that the applicant was wounded as a result of enemy action or that treatment for such injuries had been made a matter of record.  The officials at the Human Resources Command advised the congressional representative that the applicant could request a search of morning reports that may provide information relating to the event in question or possibly obtain medical documents from the Department of Veterans Affairs that would confirm his treatment of such wounds/injuries.  He was further informed that the applicant should submit such evidence to that office when obtained.

7.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for the Purple Heart or any additional individual awards earned during his tour in Vietnam and not already noted on his DD Form 214.

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.

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant's claim that he was wounded as a result of enemy action is not in doubt, to qualify for award of the Purple Heart, there must be sufficient evidence to show that the individual was in fact wounded/injured as a result of enemy action and that treatment for such wounds was made a matter of record.  

2.  In addition to the requirements outlined above, it is also noted that the Purple Heart is awarded for a wound/injury incurred on a specific date; however, no specific date can be established from the available evidence.  This is especially difficult given the passage of time (38+ years).

3.  Therefore, in the absence of sufficient evidence to establish his entitlement to award of the Purple Heart, there appears to be no basis to award him the Purple Heart at this time.

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.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.


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 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)                                         AR20080018010



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ABCMR Record of Proceedings (cont)                                         AR20080018010



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