IN THE CASE OF:	  

		BOARD DATE:	        05 MARCH 2009

		DOCKET NUMBER:  AR20080018560 


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.  He further requests that he be furnished a duplicate of his Air Medal and the orders, certificates and/or citations awarding him the Air Medal and each of his oak leaf clusters.

2.  The applicant states that in late September 1968 or October 1968 during a rocket attack, he received a small shrapnel wound to his chest and was evacuated to a mobile Army surgical hospital unit in Vietnam.  He states that he was subsequently taken to a field hospital in Vietnam.  He states that he requested and received all of his medical records from the National Personnel Records Center and from the Department of Veterans Affairs (VA) and there were no records pertaining to his Vietnam service.  He states that he believes that there may be morning reports from the 801st Maintenance Battalion, 101st Airborne Division showing his hospitalization in Vietnam.  He states that he has documentation from the VA verifying that he received a shrapnel wound to his chest and a letter from the Department of the Army Physical Disability Agency that shows the wound to be an instrumentality of war.

3.  The applicant provides in support of his application a copy of a letter from the VA, dated 10 October 1995; a copy of a VA Rating Decision, dated
25 September 2008; a copy of his DA Form 759 (Individual Flight Record - Army Aviator) for the period December 1967 through May 1968; and a copy of a Combat-Related Special Compensation (CRSC) Form 11 verifying his combat-related illnesses/injuries.


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 available records show that the applicant had prior service in the Regular United States Air Force for a period of 12 years, 6 months, and 4 days.  Having accepted an appointment as a warrant officer (WO1) in the United States Army Reserve (USAR), he entered active duty on 12 July 1963 as an aircraft repair technician, parachutist qualified.

3.  The applicant was transferred to Korea on 4 December 1964 and he was transferred to Vietnam on 9 October 1965.  He returned to the Continental United States (CONUS) on 3 January 1966.

4.  The applicant returned to Vietnam on 23 November 1967 and he was assigned to Company B, 801st Maintenance Battalion, 101st Support Command, 101st Airborne Division.  His records do not show that he was wounded as a result of hostile action while he was in Vietnam.  The applicant returned to CONUS on 16 November 1968.

5.  On 30 November 1970, he was honorably retired after completing 21 years, 6 months, and 13 days of total active service.

6.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that he was furnished at the time of his retirement shows that among the awards listed, he was awarded the Air Medal with three oak leaf clusters while he was on active duty.

7.  The applicant's name does not appear on the Vietnam Casualty Reference Name Listing showing that he was wounded in action when he was in Vietnam.

8.  A review of the applicant's official military records does not contain copies of the orders, certificates and/or citations awarding him the Air Medal and each of his oak leaf clusters.

9.  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, also failed to reveal any Air Medal orders pertaining to the applicant.

10.  The letter from the VA that the applicant submits in support of his application, dated 10 October 1995, shows that the VA determined his claim of residuals fracture right fifth toe and scar, and the residuals shrapnel wound of his chest were rated as noncompensable, service-connected disabilities.  The VA Rating Decision, dated 25 September 2008, that he submits shows that he was granted service-connection for bilateral hearing loss effective 8 March 2007.  The CRSC Form 11 that he submits verifies "diabetic mellitus, paralysis of external popliteal nerve (bilaterial, right lower extremity), paralysis of popliteal nerve (bilateral, left lower extremity), eye condition, hypertension, and superficial scars" as being linked to a combat-related situation.  The CRSC Form 11 also shows that the service-related illness/injury of "residuals of foot injury" was unable to be verified as a combat-related.

11.  Army Regulation 600-8-22 (Military Awards) 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart for a shrapnel wound that he received to his chest during a rocket attack in late September 1968 or October 1968, which resulted in his being evacuated to a mobile Army surgical hospital unit in Vietnam.  

2.  His contentions have been noted.  However, a review of the available records does not show that he was wounded as a result of hostile action while he was in the service or that he was evacuated to a MASH unit for such wounds.

3.  While he submits a letter from the VA stating that he has residual shrapnel wounds of the chest that are determined to be service-connected, in accordance with the applicable regulation, 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.

4.  Based on the information contained in the applicant's official records, he does not meet the criteria contained in Army Regulation 600-8-22 for award of the Purple Heart.  Therefore, he is not entitled to the award of the Purple Heart.

5.  In regard to the applicant's request to be furnished a duplicate of his Air Medal and the orders, certificates and/or citations awarding him the Air Medal and each of his oak leaf clusters, neither the applicant's available records nor ADCARS contain copies of the orders, certificates, and/or citations awarding him the Air Medal and oak leaf clusters.  Therefore, this portion of his request cannot be granted.

6.  The ABCMR does not issue awards.  However, the applicant is advised that requests for medal sets for previously approved awards should be forwarded to the National Personnel Records Center (NPRC), St. Louis, Missouri.  The NPRC will verify the awards to which a retiree/veteran is entitled and forward the request with verification to the appropriate service department for issuance of the medals.  Requests submitted to NPRC may be submitted via a letter or the Standard Form 180 (which can be found at http://www.archives.gov/st-louis/military-personnel/index.html.)  Requests must include a copy of the retiree's/veteran's separation or discharge paperwork and any other supporting documentation to substantiate his request.

7.  In view of the foregoing, there is no basis for granting the applicant's requests.

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)                                         AR20080018560



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ABCMR Record of Proceedings (cont)                                         AR20080018560



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