IN THE CASE OF:	  

		BOARD DATE:	  24 February 2009

		DOCKET NUMBER:  AR20080018980 


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 two separate applications, in effect, that he:

   a.  be awarded the Purple Heart for wounds he received on 12 April 1969 and that it be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); and 

   b.  that the Purple Heart he was awarded for being wounded on 23 June 1969 be added to his DD Form 214.

2.  In the first of his two applications, the applicant states, in effect, that he was wounded by sharp metal to the left leg while returning from an ambush in the Delta on 12 April 1969 in an action with an opposing force when a fellow Soldier was killed in action.  At that time again they had no platoon leader, squad sergeant, or anyone to put the papers in for award of the Purple Heart.  He adds that no officers were with them during the ambush since the captain, lieutenant, and sergeant were all wounded or killed in action before he arrived on 13 March 1969.  The witnesses to this act of Viet Cong hostile foreign forces were either killed in action on 4 June or 23 June 1969.  The one PFC (Private First Class), he stated, who is still living has given his statement which is attached.

3.  In the second of his two applications, the applicant states, in effect, that he did not receive his Purple Heart for wounds he received in the finger and arm on 23 June 1969.  He had to continue delivering cover fire while the severely 


wounded were removed from the battle zone.  Since the helicopter crashed back 
onto the wounded, he was not seen [treated for his wounds] until he returned to Firebase Blackhorse.  The applicant expands upon the details connected to the events that transpired on 23 June 1969 when he alleges he was wounded in the finger and on the arm in a self-authored addendum to his request for correction of his record.

4.  In support of his application, the applicant submits a self-authored addendum to his DD Form 149 (Application for Correction of Military Record), a copy of his DD Form 214, a copy of a Standard Form (SF) 600 (Chronological Record of Medical Care), a copy of an e-Mail from another Soldier who describes himself as "old and senile," and statements from three fellow Soldiers who allege to have witnessed the action in which he was wounded.

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 submitted a copy of his two applications to his Member of Congress.  The applicant's Member of Congress has asked, in effect, that he be provided a copy of a response which addresses his constituent's concerns.

3.  The applicant’s records show that he was inducted into the Army of the United States on 7 October 1968.  He completed basic combat training at Fort Campbell, Kentucky, and his advanced individual training at Fort Lewis, Washington.  After completing all required training, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

4.  The applicant served in Vietnam with Company D, 2nd Battalion, 3rd Infantry Regiment, 199th Infantry Brigade, from 17 March 1969 through 11 March 1970.

5.  The applicant was honorably released from active duty on 31 August 1970, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), Chapter 5 (Convenience of the Government - Early Release 
to Attend School).  He was separated in the rank of Sergeant (SGT)/pay grade
E-5.  On the date he was released from active duty, he had served 1 year,
10 months, and 25 days active military service with no time lost.

6.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Army Commendation Medal with two oak leaf clusters and with "V" Device, the Bronze Star Medal, two overseas service bars, and the Sharpshooter Marksmanship Qualification Badge with Automatic Rifle Bar (M-16 Rifle).  No other awards, to include the Purple Heart, are shown on the applicant's DD Form 214.

7.  No entry appears in Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) to show that he received a wound in action against a hostile force while he served in Vietnam.

8.  The applicant's name does not appear on the Vietnam Casualty List.  The applicant's name also does not appear on the U.S. National Archives and Records Administration's Casualty Information System which has the names of deceased, wounded or ill or injured Army personnel, including dependents and civilian employees, recorded during the period from 1 January 1961 through December 1981.

9.  There is no entry in Item 41 (Awards and Decorations) of the applicant's DA Form 20 showing that the applicant was awarded the Purple Heart.

10.  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, was conducted to determine if the applicant was awarded the Purple Heart for either of the two incidents he alleges to have been involved in.  This search failed to reveal any orders that were published awarding the Purple Heart to the applicant.

11.  The applicant submitted an SF 600.  This SF 600 shows the applicant was treated on 20 September 1969 for a sore on his right ring finger.  On 21 September 1969 he was treated for an infection on the left ankle.  There 
is no entry on the SF 600 showing what caused the sore or what might have caused the infection the applicant incurred.  There is no indication on the SF 600 these ailments resulted from an action or engagement the applicant may have had with a hostile enemy force.

12.  The applicant submitted four statements from individuals who contend they were witnesses to his having been wounded; however, none of the statements were signed by the contributors.  The statements are summarized as follows:

   a.  Larry H******** stated that he witnessed the applicant with a wound on his finger that was taken care of by medics at the battalion aid station.  He states he saw shrapnel being extracted from the applicant's finger and arm; however, this witness did not provide the date during which this incident occurred.

   b.  Gregory L. N***** submitted a "Report of Incident June 23, 1969," in which he recalls that the applicant was taken to the battalion aid station where he believes the applicant's ring was cut from his finger.  He also recalls the applicant was wounded in the arm and finger.

   c.  Harold F. U****, in his statement states, in effect, he was not a direct witness but discovered when they returned to base camp that the applicant had received wounds to his left leg.  He alleges the applicant had received medical treatment and had remained in the field with the rest of them.

   d.  In an e-Mail, "Doc" M****** states that he was aware of the applicant's injuries; however, he didn't give any details where they were located anatomically nor did he give an indication of the date the applicant sustained the injuries or wounds.

13.  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.  To be awarded the Purple Heart, substantiating evidence must be presented to show that the applicant was wounded as 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.

2.  The applicant provided witness statements; however, none of the statements are signed.  In his application, the applicant stated that witnesses to his having been wounded on 12 April 1969 were killed in action on either 4 June or 23 June 1969.  The applicant's sole witness to this incident, Harold F. U****, stated, in effect, he was not a direct witness but discovered when they returned to base camp that the applicant had received wounds to his left leg.  He alleges the applicant had received medical treatment and had remained in the field with the rest of them.

3.  Witnesses to the applicant allegedly having been wounded on 23 June 1969 also did not sign their statements.  Larry H******** stated that the applicant was wounded on his finger, was taken care of by medics at the battalion aid station, saw shrapnel being extracted from the applicant's finger and arm, but did not provide the date during which this incident occurred.  Gregory L. N***** recalled that the applicant was taken to the battalion aid station where he believes the applicant's ring was cut from his finger.  He also recalled the applicant was wounded in the arm and finger; however, there is disagreement between the date of the incident and the date the applicant received medical treatment for a sore on his finger.  "Doc" M****** stated he was aware of the applicant's injuries; however, he didn't give any details where they were located anatomically nor did he give an indication of the date the applicant sustained the injuries or wounds.

4.  As indicated above, none of the statements are signed.  The applicant stated he was wounded on the finger and on the arm on 23 June 1969, then submitted medical documentation for treatments he received in September 1969 for a sore finger.  The SF 600 the applicant submitted gave no indication the sore was received as a result of hostile action.

5.  Despite the fact the applicant alleges, in effect, there was no one to put the papers in for award of the Purple Heart because all the officers and noncommissioned officers had been wounded or killed in action, award of the Purple Heart is not based solely upon the submission of a recommendation.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather an individual is entitled to it upon meeting certain criteria, this criteria includes being wounded by hostile forces.

6.  The applicant's name does not appears on the Vietnam Casualty List.  The applicant's name also does not appear on the U.S. National Archives and Records Administration's Casualty Information System which has the names of deceased, wounded, or ill or injured Army personnel.

7.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20080018980



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ABCMR Record of Proceedings (cont)                                         AR20080018980



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