IN THE CASE OF:	  

		BOARD DATE:	  5 March 2009

		DOCKET NUMBER:  AR20080018522 


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, that he received a wound to his chin while helping to put a sergeant on a medical evacuation (MEDEVAC) helicopter, and that he could have gotten hepatitis from unclean cook's helpers.   

3.  The applicant provides a Department of Veterans Affairs (VA) disability claim packet and photographs 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 was inducted into the Army of the United States and entered active duty on 22 January 1969.  He was trained in and awarded military occupational specialty (MOS) 94B (Cook), and specialist four (SP4)/E-4 is the highest rank/grade he attained while serving on active duty.  

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 29 January 1970 through 17 January 1971.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company E, 43rd Signal Battalion and to the 556th Signal Company, performing duties in MOS 94B as a cook.  Item 40 (Wounds) is blank and the PH is not included in the list of awards contained in Item 41 (Awards and Decorations).  

4.  The applicant's record is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty.  The record also does not include medical treatment records that indicate he was ever treated for a combat-related wound or injury while serving in the RVN. 

5.  On 18 January 1971, the applicant was honorably released from active duty (REFRAD) after completing a total of 1 year, 11 months, and 21 days of active military service.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he earned the following awards:  National Defense Service Medal, Vietnam Service Medal, RVN Campaign Medal, 1 Overseas Service Bar, and the Marksman Marksmanship Qualification Badge with Rifle Bar.  The PH is not included in the list of awards contained on the separation document and the applicant authenticated the DD Form 214 with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his REFRAD.

6.  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.

7.  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 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 be awarded the PH because of a wound he received to his chin from a metal fragment while helping a sergeant onto a MEDEAVC helicopter or because he could have received hepatitis from unclean cook's helpers was 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 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.  The PH is also not included in the list of awards contained in Item 41. 

3.  Further, the applicant's record is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty, or of medical treatment records that indicate he was ever treated for a combat-related wound or injury.  

4.  Finally, the PH is not included in the list of awards contained on his DD Form 214, which he authenticated with his signature on the date of his REFRAD, and his name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  Therefore, absent any evidence of record confirming the applicant was wounded in action or treated for a combat-related wound while serving in the RVN, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  

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.  

6.  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.   



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)                                         AR20080018522



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080018522



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1