IN THE CASE OF:	  

		BOARD DATE:	        19 MARCH 2009

		DOCKET NUMBER:  AR20080019021 


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 states, in effect, that he was wounded on the left side of his chest in Vietnam and was medically evacuated to a landing zone (LZ), where he remained for 2 weeks.  He also states that he was told the shrapnel was too deep to remove and he was released to go back to the field.  He further contends that there were no physicians or x-ray equipment at the LZ, but he recently had a computerized axial tomography (CAT) scan performed and found out the fragment is in his lung.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); an Army Human Resources Command (AHRC) Form 249-2-E (Chronological Statement of Retirement Points), dated 6 July 2006; a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 23 July 2008; and the findings from a CAT scan conducted on him on 7 June 2006 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 was inducted into the Army of the United States on 9 December 1968.  He completed basic and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He served in the Republic of Vietnam from 3 June 1969 to 3 June 1970, then he was reassigned to Fort Carson, Colorado, where he served until he was released from active duty on 8 December 1970.  The DD Form 214 that was issued to him at the time of his release from active duty shows that he was awarded the National Defense Service Medal, the Combat Infantryman Badge, the Vietnam Service Medal with Two Bronze Service Stars, the Army Commendation Medal, and the Republic of Vietnam Campaign Medal with 1960 Device.  He continued his military service and eventually retired from the United States Army Reserve. 

3.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 does not show that he was awarded the Purple Heart.  Item 9 (Awards, Decorations, and Campaigns) of his DA Form 2-1 (Personnel Qualification Record – Part II) also does not show that he was awarded the Purple Heart, and item 4 (Assignment Considerations) of this document does not contain any entries indicating that he was wounded or injured as a result of hostile action.  There are no orders in his military records awarding him the Purple Heart.  While 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, produced the applicant's Army Commendation Medal orders, it 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 show he was wounded or injured as a result of hostile action.

4.  The applicant provided the findings from a CAT scan conducted on him on 
7 June 2006.  The physician who prepared these findings essentially stated that there was a focal area of metallic density which appears to be within the applicant's chest cavity adjacent to the left heart border that was reportedly secondary to a grenade shrapnel wound.  This physician also stated magnetic resonance imaging would not be performed at that time given the history and positioning of the object.
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 record.  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 records.

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 fact that a physician indicated that there was a focal area of metallic density appearing to be within the applicant's chest cavity was noted.  However, this physician only noted that it was reportedly (emphasis added) secondary to a grenade shrapnel wound.  It is clear that this physician only made this statement because the applicant told him that he received a shrapnel wound.  

4.  The 7 June 2006 CAT scan findings provided by the applicant are not corroborated by any evidence in his military records.  As a result, by itself, this document does not approach the threshold of proving, by a preponderance of the evidence, that he was wounded or injured as a result of hostile action.  Regrettably, absent evidence which conclusively shows that the applicant was wounded or injured as a result of hostile action, that he was treated by medical personnel at the time for wounds or injuries sustained as a result of hostile action, and that this medical treatment was made a matter of official record, there is insufficient basis upon which to award the Purple Heart to the applicant in this case.

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 made by the applicant in service to the United States throughout 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)                                         AR20080019021



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ABCMR Record of Proceedings (cont)                                         AR20080019021



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