IN THE CASE OF:	

		BOARD DATE:	 12 March 2009 

		DOCKET NUMBER:  AR20080018528 


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 his records show he served in a Long Range Reconnaissance Patrol (LRRP) combat unit from the 2nd quarter of 1967 to March of 1968 and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Purple Heart.

2.  The applicant states he was wounded in combat and won a Purple Heart.  He states that he took shrapnel in the Republic of Vietnam, receiving an injury to his upper arm area.

3.  The applicant provides a radiology report in support of this 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 records show he was inducted into the Army of the United States and entered active duty on 12 October 1966.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 71B (clerk typist).  The highest rank he attained while serving on active duty was specialist four (SP4) (temporary)/pay grade E-4.  The applicant's DD Form 214 shows that on 23 July 1968 he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  He completed 1 year,
9 months, and 12 days of creditable active service with 11 months and 26 days of foreign service.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served with the 4th Administration Company, 4th Infantry Division and Headquarters and Headquarters Company (HHC), 3rd Brigade, 4th Infantry Division in the Republic of Vietnam from 28 July 1967 to 27 July 1968.

4.  The applicant's DD Form 214 shows the last command to which he was assigned was HHC, 3rd Brigade, 4th Infantry Division LRRP.

5.  The applicant's DA Form 20, item 40 (Wounds), is blank.  Item 41 (Awards and Decorations) of this form does not show the Purple Heart.  Item 48 (Date of Audit) shows the applicant last audited the DA Form 20 on 1 August 1967.

6.  The applicant's name does not appear on the Vietnam Casualty Roster.  There is no evidence in the available records which shows the applicant was ever wounded as the result of a hostile action or awarded the Purple Heart.

7.  A review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for award of the Purple Heart.

8.  While the applicant provided a report from the Long Beach, California Veteran's Affairs Medical Center that indicates he has a metallic body in the soft tissues adjacent to the midshaft of the left humerus (primary bone of upper arm), there is no available evidence that the applicant acquired this while in combat. 

9.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and procedures concerning awards.  It provides, in pertinent part, that the Purple Heart is awarded for a wound 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 medical personnel, and the medical treatment must have been made a matter of official record.

10.  Army Regulation 600-200 states, in pertinent part, that a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring 
hospitalization will be entered in item 40 (wounds) of the DA 20.  This regulation further states that the date the wound or injury occurred will also be placed in item 40.

DISCUSSION AND CONCLUSIONS:

1.  There are no orders in the applicant's service personnel records which show that he was awarded the Purple Heart.  There also is no evidence in his records that he was wounded or treated for wounds as a result of hostile action.  His DA Form 20 does not show any entry in Item 40 or list the Purple Heart in Item 41.  The applicant's name is not listed on the Vietnam Casualty Roster.  There were no Purple Heart orders found in ADCARS. 

2.  In the absence of evidence that the applicant 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.  As a result, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  Therefore, there is no basis for adding this award to his DD Form 214.

3.  There is no evidence available or provided by the applicant indicating the length of time that he was assigned to a LRRP unit.  Although item 12 of his DD Form 214 shows his assignment to a LRRP unit, there is no provision to annotate a specific time frame on the DD Form 214 for this unit.  Therefore, there is no basis for correction of his records to show when he served in such a unit.








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)                                         AR20080018528



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ABCMR Record of Proceedings (cont)                                         AR20080018528



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