IN THE CASE OF:	  

		BOARD DATE:	        18 February 2009

		DOCKET NUMBER:  AR20080018517 


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 award of the Purple Heart.

2.  The applicant states that he was wounded by a piece of shrapnel on 14 May 1970 in the Republic of Vietnam

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 2 June 1971; a copy of his DD Form 215 (Correction to DD Form 214), dated 20 September 2005; a self-authored statement, dated 24 October 2008; and an undated witness statement, in support of his request.

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 records show he was inducted into the Army of the United States on 10 June 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He was honorably separated and transferred to the U.S. Army Reserve Control Group (Annual Training) on 2 June 1971.  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  The applicant’s records also show he served in the Republic of Vietnam from 8 November 1969 to 25 October 1970.  He was assigned to Company B, 2nd Battalion, 5th Cavalry, 1st Cavalry Division.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 shows he was awarded the National Defense Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), two Overseas Service Bars, the Vietnam Service Medal with three bronze service stars, the Air Medal, the Army Commendation Medal (1st Oak Leaf Cluster) and "V" Device, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14 & M-16), the Combat Infantryman Badge, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Item 24 does not show award of the Purple Heart.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows a blank entry.

6.  The applicant's name is not shown on the Vietnam Casualty Roster. 

7.  The applicant's medical records are not available for review with this case.

8.  There are no general orders in the applicant's records that show he was awarded the Purple Heart.

9.  In his self-authored letter, dated 24 October 2008, the applicant states that he was involved in a fire fight when his company invaded Cambodia on 14 May 1970.  As the first helicopter set down on the landing zone (LZ), the unit received heavy fire and rockets from the wood line.  After things settled down, unit members started working on the LZ which involved pushing up berms and digging fighting positions.  That night, the unit was attacked by the enemy from all directions.  He felt a sharp piercing pain through his lower right leg and realized later that he had been hit by shrapnel.  When the attack was over, the unit medic treated his wound and he was told by a lieutenant and a captain that he would be put in for the Purple Heart.  He adds that his wound was later infected and he was medically evacuated to Long Binh Hospital where he discovered that the lieutenant and the captain had been killed. 
10.  In an undated statement, a former member of the same unit states that he was a witness during the company's air assault into Cambodia to set up the LZ.  He adds that the company took heavy losses that night and that the applicant was wounded, but unlike others whose wounds were more serious, the applicant was not medically evacuated.  He adds that he was fighting beside him when he saw the applicant being hit with shrapnel in his leg.  He also adds that the lieutenant wrote up the recommendation for award of the Purple Heart; however, he was killed in action and the paperwork must have been lost or destroyed after his death.  

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.  This regulation further states that there is no time limit on submission of requests for award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was wounded in the Republic of Vietnam and the supporting witness statement he submitted were carefully considered; however, there is insufficient evidence to support award of the Purple Heart to the applicant in this case.

2.  There are no general orders that show the applicant was awarded the Purple Heart and there is no evidence in his service personnel records that shows he was wounded or injured as a result of hostile action or treated for such wounds.  Additionally, his name is not shown on the Vietnam Casualty Roster and there are no medical documents that show he was treated for a wound/injury caused by the enemy.  In the absence of documentation that shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case.

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.



															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)                                         AR20080018517





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080018517



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1