IN THE CASE OF:	  

		BOARD DATE:	  	  3 February 2009

		DOCKET NUMBER:  AR20080018137 


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, correction of his records to show award of the Purple Heart.

2.  The applicant states, in effect, he was awarded the Purple Heart, but it was not recorded on his discharge document.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 4 March 1969; Congress of the United States, House of Representatives, Washington, District of Columbia, letter, dated 10 October 1969; and Western Union Telex Service, message, date-time group 101400Z October 1969.

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 personnel records show he was inducted into the Army of the United States on 12 October 1967.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant's military personnel records contain a DA Form 20 (Enlisted Qualification Record).

     a.  Item 31 (Foreign Service) shows he served overseas in the U.S. Army Pacific (USARPAC) in the Republic of Vietnam (RVN) from 23 March 1968 through 22 March 1969.

     b.  Item 38 (Record of Assignments) shows, in pertinent part, he was assigned to Company D, 3rd Battalion, 8th Infantry, 4th Infantry Division (USARPAC RVN) from 5 April 1968 through 13 March 1969.

     c.  Item 40 (Wounds) is absent an entry.

     d.  Item 41 (Awards and Decorations) fails to show he was authorized award of the Purple Heart.

4.  There is no medical documentation in the applicant’s military service records that shows he was wounded or treated for wounds as a result of hostile action.  In addition, a review of The Adjutant General Office, Casualty Division's Vietnam casualty roster shows that the applicant’s name is not listed on the roster.

5.  A thorough review of the applicant’s military personnel records revealed that there are no orders in the applicant’s records that show he was awarded the Purple Heart.  In addition, a search of the U.S. Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System for the Vietnam Conflict failed to produce orders showing award of the Purple Heart to the applicant for wounds received in action in Vietnam.

6.  The applicant’s military service records contain an SF 600 (Chronological Record of Medical Care) that shows an entry, dated 20 October 1968, which reads “[patient] received trauma to head and r[ight] hand.  Trauma to head caused 2 in[ch] laceration.  Put in 8 sutures and dressed with collodion."

7.  The applicant's military service records contain a Standard Form (SF) 89 (Report of Medical History), dated 25 September 1969, which was completed by the applicant at the time of his medical examination prior to his release from active duty.  In response to Item 17 (Statement of Examinee's Present Health in Own Words), the applicant entered "[r]ight hand loses strength after continuous use for more than one hour following incedent (sic) in Republic of Vietnam.  Weakness of right ankle following similar incedent (sic)."  In response to Item 20 (Have You Ever Had or Have You Now), Foot Trouble, the applicant placed a checkmark in the "Yes" column.  This document also shows that in Item 39 (Physician's Summary and Elaboration of all Pertinent Data) the attending physician referenced Item 20 and entered "[g]ets pain above r[ight] heal (sic) when he stands on it for 4-5 hours – dropped weight on it in RVN."  The SF 89 also shows that both the applicant and attending physician affixed their signatures to the document.

8.  The applicant's military personnel records contain a DD Form 214 that shows he entered active duty on 12 October 1967.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Army Commendation Medal, National Defense Service Medal, Vietnam Service Medal with 2 bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), Combat Infantryman Badge, and 2 Overseas Service Bars.  The DD Form 214 also shows the applicant was honorably released from active duty on 10 October 1969 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining military service obligation.  At the time, he had completed 1 year, 11 months, and 29 days of net active service this period and 1 year of foreign service.

9.  In support of his request, the applicant provides a copy of a Congress of the United States, House of Representatives, Washington, District of Columbia, letter, dated 10 October 1969 and Western Union Telex Service, message, date-time group 101400Z October 1969 that show, in pertinent part, the applicant was given a medical examination on 25 September 1969 and it was determined that the applicant met the minimum standards for retention or separation.  In addition, paragraph 3 of the telegram states, “[s]ince the wounds sustained by Sergeant F______ may be considered as rateable by the Veterans Administration for disability compensation purposes, he should apply for review of his case by that agency upon release from military service.  This would establish a claim for any benefits due him and protect both his best interests and that of the Government.”

10.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards and, in pertinent part, contains the regulatory guidance pertaining to awarding the Purple Heart.  It states that the Purple Heart is awarded to any member who has been wounded or killed in action.  A wound is an injury to any part of the body from an outside force or agent sustained as a result of hostile action.  In order to support awarding a member the Purple Heart, it is necessary to establish that the wound for which the award is being made required treatment by a medical officer.  This treatment must be supported by records of medical treatment for the wound or injury received in action, and must have been made a matter of official record.  This regulation also provides examples of injuries or wounds which clearly do not qualify for award of the Purple Heart and cites, in pertinent part, accidents involving explosive, aircraft, vehicular, and other accidental wounds or injuries not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his DD Form 214 should be corrected because he was awarded the Purple Heart, but the award was not recorded on his discharge document.

2.  There is no evidence the applicant was awarded the Purple Heart.  There is no documentary evidence in the applicant's military personnel records that supports his contention that he was awarded the Purple Heart.  In addition, the applicant's name is not listed on The Adjutant General Office, Casualty Division's Vietnam Casualty Roster.  Moreover, a search of the U.S. Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System database failed to produce orders to substantiate the applicant’s claim.

3.  The evidence of record shows the applicant’s injuries (i.e., to his head, right hand, and right ankle) were sustained in two separate, similar incidents in which he dropped weight on them.  Thus, it is reasonable to conclude the injuries were the result of accidents.  The evidence of record also shows, in pertinent part, that injuries or wounds sustained as a result of accidents do not qualify for award of the Purple Heart.

4.  The Army regulatory guidance governing the criteria for award of the Purple Heart is clear in that the wound for which the award is made must have been received in action, it must have required treatment by a medical officer, and record of the medical treatment for the wound or injury received in action must have been made a matter of official record.  The evidence of provided does not satisfy the strict requirements for the award.  Therefore, in view of all of the foregoing, the applicant is not authorized award of the Purple Heart based on injuries he sustained in Vietnam.

5.  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.  Therefore, in view of all 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.




      _______ _   _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)                                         AR20080018137



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ABCMR Record of Proceedings (cont)                                         AR20080018137



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