IN THE CASE OF:	  

		BOARD DATE:	  	  26 March 2009

		DOCKET NUMBER:  AR20080019050 


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 that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show award of the Purple Heart (PH).  

2.  The applicant states that he was injured in combat while serving in Vietnam.  He realizes that this is a late request, but the Department of Veteran Affairs has awarded him service connection for Post Traumatic Stress Disorder (PTSD). 

3.  The applicant provides his DD Form 214 and a copy of a DVA Rating Decision in support of his 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 record shows that he was inducted into the Army of the United States and entered active duty on 30 July 1968.  He was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The applicant served in Vietnam from 12 February 1969 to 2 March 1970.  Private First Class (PFC) is the highest rank he attained while serving on active duty.

3.  The applicant's Military Personnel Records Jacket (MPRJ) is void of any orders or other documents that indicate the applicant was ever recommended for 
or awarded the PH by proper authority while serving on active duty.  The MPRJ 
also contains no medical treatment records that indicate he was ever treated for a combat-related wound or injury while serving in the Vietnam. 

4.  There is no entry in Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) showing he was wounded in action as a result of hostile action.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 contains no entry showing he was awarded the Purple Heart.

5.  On 30 September 1970, the applicant was honorably released from active duty after completing a total of 1 year, 11 months, and 23 days of active military service.  The DD Form 214 he was issued at the time shows he earned the following awards:  Combat Infantryman Badge, 2 Overseas Service Bars, Commendation Medal, National Defense Service Medal, Air Medal, Vietnam Service Medal and Vietnam Campaign Medal with device (1960).  

6.  The applicant submitted a copy of his DVA Rating Decision which shows he is rated 50 percent disabled due to PTSD, effective 25 April 2008.  He is also rated 0 percent disabled due to a superficial wound scar of the neck, effective
25 April 2008.  

7.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army Vietnam Casualty Roster.  There was no entry pertaining to the applicant on this list of Vietnam casualties.  

8.  In addition, a search 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 U.S. Army Human Resources Command, failed to produce a copy of orders awarding the applicant the Purple Heart.

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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's claim of entitlement to the Purple Heart and the supporting evidence provided were carefully considered.  However, by regulation, in order to be awarded the PH substantiating evidence must be presented to show the Soldier was wounded as a result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

2.  The applicant's military record is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty.  It also contains no medical treatment records that indicate he was ever treated for a combat-related wound while serving in the Vietnam.  

3.  The applicant's name is not included on the Vietnam Casualty Roster, the official DA list of Vietnam battle casualties.  Absent any evidence of record confirming the applicant was wounded in action or treated for a combat-related wound while serving in Vietnam, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  

5.  The applicant's desire to be awarded the Purple Heart based on having qualified for service-connected benefits from the DVA is acknowledged; however, award of the Purple Heart cannot be granted solely because the applicant was granted service-connected benefits from the DVA.  The criteria for award of the Purple Heart specified in the applicable regulation must be met in order that an award of the Purple Heart can be made.

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

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)                                         AR20080019050



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ABCMR Record of Proceedings (cont)                                         AR20080019050



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