IN THE CASE OF:	  

		BOARD DATE:	        17 MARCH 2009

		DOCKET NUMBER:  AR20080018841 


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 he be awarded the Purple Heart. 

2.  The applicant essentially states that he was wounded in action in Vietnam on 21 October 1968, and that there is no record of him being wounded because he refused to leave his unit and be evacuated for treatment of his wound.

3.  The applicant provides two letters, dated 28 October 2008, from his brother 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 military records show that he enlisted in the Regular Army on 21 October 1965.  After completing basic and advanced individual training, he was reassigned to Fort Bragg, North Carolina in June 1966.  On 31 October 1966, he departed for a tour in Germany, and he returned to the continental United States on 15 April 1968.  He then departed for the Republic of Vietnam on 1 June 1968, and served with Battery B, 6th Battalion, 32nd Artillery Regiment.  He returned to the continental United States 31 May 1969, and served at Fort Sill, Oklahoma until he was honorably discharged on 15 May 1972.  

3.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that was issued at the time of his discharge on 15 May 1972 does not show that he was awarded the Purple Heart.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) does not contain any entries that indicate he was wounded or injured as a result of hostile action.  Item 41 (Awards and Decorations) of this same document also does not show that he was awarded the Purple Heart.  There are no orders in his military records awarding him the Purple Heart, and a search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System, a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era, also failed to produce any orders awarding him the Purple Heart.  Additionally, the applicant’s name is not listed on the Vietnam Casualty Roster.  Further, there is no evidence in his military personnel records which shows that he was wounded or injured as a result of hostile action.

4.  The applicant provided two letters, both dated 28 October 2008, from his brother.  The lengthier of these letters essentially states that the applicant was wounded during combat in Vietnam in 1968, and that the applicant had not spoken of this to anyone until they were on a trip together in September 2007.  It also states, in pertinent part, that the applicant was wounded when his battery came under mortar attack and he suffered a shrapnel wound to his leg, but that the applicant refused to be evacuated.  Additionally, it essentially states that the medic who tended to his wound informed the applicant that he was eligible for the Purple Heart, but that the paperwork had to be filled out at the hospital.

5.  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 been treated by military medical personnel, and the medical treatment must have been made a matter of official 

records.  Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire; the wound or injury must have required treatment by military medical personnel; and the record of medical treatment must have been made a matter of official Army record.

6.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart.

2.  The evidence provided by the applicant was carefully considered.  However, 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.

3.  The lengthier of the two 28 October 2008 letters from the applicant's brother was prepared more than 40 years after the applicant's alleged wounding and it is not corroborated by any evidence in the applicant's military records.   

4.  The contention that the applicant could only be eligible for award of the Purple Heart if he was medically evacuated to a hospital and that only the hospital could complete the paperwork for the Purple Heart was considered, but not found to have merit.  If in fact the applicant was treated by a medic for wounds received in action, the medic would have reported this treatment through medical channels, and his name would have appeared on the Vietnam Casualty Roster.  However, the applicant's name is not listed on the Vietnam Casualty Roster, and there is no evidence that he was wounded or injured as a result of hostile action, was treated by medical personnel for wounds received in action, or that medical treatment was made a matter of official record.  As none of the three factors that must be exhibited to be entitled to the Purple Heart have been met in this case, there is no basis for awarding the applicant the Purple Heart.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices he made in service to the United States during his military career, and especially during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ 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)                                         AR20080018841



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ABCMR Record of Proceedings (cont)                                         AR20080018841



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