IN THE CASE OF:	

		BOARD DATE:	  26 March 2009

		DOCKET NUMBER:  AR20080019043 


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.

2.  The applicant states, in effect, that in March 1969 he was riding on the top of a small tank when they hit a land mine.  He states he regained consciousness and sat up with help from others.  He had a cut on his arm from shrapnel, severe pain and ringing in his ears, and pain in his back.  He states he was treated in the field and he later went to base camp and saw medical personnel.  He states he has had back pain for years and had 2 ribs removed from his left side in September 1994.  He states that he has experienced problems for many years with nightmares and has been told he suffers from post-traumatic stress disorder (PTSD).  He also states that he was written up for the Purple Heart but the papers were destroyed in a fire.

3.  The applicant provides, in support of his application, two pages from his service medical records, his DD Form 214 (Report of Separation from Active Duty) with an effective date of 16 February 1970, and paragraph 2-8 from Army Regulation 600-8-22 (Military Awards).

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 personnel records show he was inducted into the Army of the United States on 12 February 1968.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 76W (Petroleum Supply Specialist).

3.  The applicant was assigned to D Troop, 1st Squadron, 10th Cavalry in the Republic of Vietnam during the period from 26 July 1968 to 5 July 1969.

4.  A Consultation Sheet, provided by the applicant, dated 10 October 1969, shows the applicant received an audiogram that showed hearing loss.  The Reason for Request section contains a note that indicates the applicant was involved in a mine accident in the Republic of Vietnam in March 1969.

5.  A Standard Form 600 (Chronological Record of Medical Care) that was provided by the applicant, dated 10 October 1969, shows treatment (unreadable) and contains a note that indicates the applicant was involved in a mine accident in the Republic of Vietnam in March 1969.

6.  The applicant's separation examination, dated January 1970, does not indicate any abnormalities or injuries suffered during his period of service.

7.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not contain any entries indicating the applicant received any wounds.  

8.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not show the award of the Purple Heart.

9.  On 16 February 1970, the applicant was released from active duty.  He had completed 2 years and 4 days of active service that was characterized as honorable.

10.  Item 24 (Decorations, Medal, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 does not show the award of the Purple Heart. 

11.  The applicant's name does not appear on the Vietnam Casualty Listing.

12.  Army Regulation 672-5-1 (Military Awards), then in effect, provides, in pertinent part, that the Purple Heart is awarded to any member of an Armed Force or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. armed services has been wounded, killed, or who has died as a result of 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 a medical officer, and the medical treatment must have been made a matter of official record.

13.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9 of the version in effect at the time, stated, in pertinent part, that a brief description of wounds or injuries (including injury from gas) requiring medical treatment that were received through hostile or enemy action, including those requiring hospitalization would be entered in item 40 (wounds) of the 
DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in item 40.

DISCUSSION AND CONCLUSIONS:

1.  The two medical documents submitted by the applicant indicate the applicant was involved in a mine accident in the Republic of Vietnam in March 1969.  However, these documents are dated over a year and a half after the incident occurred.  In fact, this information is history the applicant provided the examiner and is not shown in the applicant's medical records.

2.  Although the applicant provided a comprehensive description concerning the injuries he contends he suffered in Vietnam, there are no corroborating documents or evidence to show he was wounded or treated for wounds resulting from hostile action.  Therefore, there is no substantiating evidence to verify that the applicant's injuries were the result of hostile action, the injuries required treatment, or that the medical treatment was made a matter of official record.

3.  The Vietnam Casualty Listing does not list the applicant as a casualty and item 40 of his DA Form 20 does not show he received any wounds requiring medical treatment that were received through hostile or enemy action.

4.  In the absence of military records which show that the applicant was wounded or treated for wounds resulting from hostile action, there is insufficient evidence upon which to base award of the Purple Heart 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 our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  



      _______ _  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)                                         AR20080019043



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ABCMR Record of Proceedings (cont)                                         AR20080019043



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