IN THE CASE OF:
BOARD DATE: 16 April 2009
DOCKET NUMBER: AR20080018060
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 he suffered a crushing toe injury that led to the amputation of his toe. This injury occurred when he was firing a mortar while under attack. He says he was offered the Purple Heart but turned it down after seeing all of the seriously wounded Soldiers in the ward.
3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
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. The applicant's military records show that he enlisted in the Regular Army on 25 October 1965, was awarded the military occupational specialty of light weapons infantryman, served in Korea and Vietnam, and was promoted to pay grade E-6.
3. The applicant's DA Form 20 (Enlisted Qualification Record), Item 40 (Wounds), has no entry.
4. In the applicant's separation physical examination dated 13 October 1968, it was noted that the applicant's large toe was absent. The applicant reported that his toe had been crushed while he was assigned to Vietnam.
5. There are no medical records or other documents in the applicant's records to show how the applicant's toe was crushed.
6. The applicant was honorably released from active duty on 13 October 1968.
7. Army Regulation 600-8-22 provides that the Purple Heart is awarded for wounds 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 a medical officer, and the medical treatment must have been made a matter of official record.
8. The Vietnam Casualty List does not reflect the applicant's name.
DISCUSSION AND CONCLUSIONS:
1. While the applicant's military records show that his toe was crushed while he was assigned to Vietnam, there is no evidence to show what crushed his toe or the circumstances surrounding his toe being crushed.
2. Without evidence to show that the applicant's crushed toe was the result of hostile action, there is insufficient evidence in which to grant the applicant's request.
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 our Nation. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ 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) AR20080018060
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ABCMR Record of Proceedings (cont) AR20080018060
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