IN THE CASE OF:	  

		BOARD DATE:	  10 February 2009

		DOCKET NUMBER:  AR20080018524 


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, that the Purple Heart (PH) be added to his record and separation document (DD Form 214). 

2.  The applicant states, in effect, that he sustained a prolonged injury to his eyes, was partially blinded, and suffered second degree burns and loss of all hair from his face and head during a Viet Cong attack while serving in the Republic of Vietnam (RVN).  He claims he was examined a year after the attack on 6 March 1969.

3.  The applicant provides his DD Form 214 and VA Form 21-2545 (Report of Medical Examination for Disability Evaluation) 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 enlisted in the Regular Army and entered active duty on 10 January 1966, and that he was trained in, awarded and served in military occupational specialty (MOS) 62B (Engineer Equipment Repairman).  His Enlisted Qualification Record (DA Form 20) includes an entry in Item 31 (Foreign Service) that shows he served in the RVN from 7 July 1967 through 6 July 1968.  Item 40 (Wounds) is blank and the PH is not included in the list of awards contained in Item 41 (Awards and Decorations).  Item 48 (Date of Audit) confirms the applicant last audited the DA Form 20 on 5 September 1968.  
3.  The applicant's record is void of any orders or other documents that indicate he was ever recommended for, or awarded the PH.  It also contains no medical treatment records that indicate he was ever treated for a combat-related wound.

4.  On 20 December 1968, the applicant was honorably released from active duty (REFRAD) after completing 2 years, 11 months, and 11 days of active military service.  The DD Form 214 issued to him on the date of separation shows he received the National Defense Service Medal, Vietnam Service Medal, RVN Campaign Medal with Device (1960), Expert Marksmanship Qualification Badge with Rifle Bar, and 2 Overseas Service Bars.  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.

5.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant's name is not included on this casualty list.  

6.  The applicant provides a VA Form 21-2545, dated 6 March 1969.  Block 16c of this document contains an entry that shows he received treatment to both of his eyes at the 24th Medical Evacuation Hospital in Long Binh, RVN for two weeks.  

7.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH.  It states, in pertinent part, that the PH is awarded to any member who has been wounded or killed in action. The regulation stipulates 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 it required treatment by military 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 claim of entitlement to the PH was carefully considered.  However, by regulation, in order to support award of the PH, it is necessary to establish that the wound for which the award is being made was received as a direct result of or was caused by enemy action, that wound required treatment by military medical personnel, and a record of this medical treatment must have been made a matter of official record.  

2.  The VA Form 21-2545, dated 6 March 1969, which was provided by the applicant does show he received treatment for both of his eyes at the 
24th Medical Evacuation Hospital in Long Binh, RVN for two weeks.  However, the information on this document was provided to the VA by the applicant and there are no military medical treatment records on file or provided by the applicant that confirm this hospitalization or treatment, or that confirm he was wounded in action or treated for a combat-related wound by military medical personnel while serving in the RVN.  

3.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action.  The PH is not included in the list of awards contained in Item 41 and the applicant last audited the DA Form 20 on 5 September 1968, subsequent to his departure from the RVN.  His record is void of any orders or documents that show he was ever recommended for, or awarded the PH by proper authority while serving on active duty.  There are also no medical treatment records on file that indicate he was ever treated for a combat-related wound or injury.

4.  Further, the applicant's name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  Absent any evidence to the contrary, there is a presumption of regularity attached to the information contained on the DD Form 214, to include the awards listed.  

5.  Absent any evidence of record or independent evidence provided by the applicant that confirms he was wounded in action, or treated for a combat- related wound or injury by military medical personnel while serving in the RVN, 
the regulatory burden of proof necessary to support award of the PH has not 
been satisfied in this case.  As a result, it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to support award of the PH in this case. 

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.

7.  The applicant and all others concerned should know that this action related to award of the PH 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.

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)                                         AR20080018524



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ABCMR Record of Proceedings (cont)                                         AR20080018524



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