IN THE CASE OF:	

		BOARD DATE:	  7 April 2009

		DOCKET NUMBER:  AR20080019155 


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 he did not receive a Purple Heart for an eye injury. 

3.  The applicant provides a copy of a letter, dated 3 January 2005, from the Department of Veterans Affairs showing he receives service connected compensation for blindness in the right eye with light perception only and a scar over right eye with retained foreign bodies that are slightly disfiguring. 

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 record shows he was inducted into the Army of the United States on 19 October 1965 for a period of 2 years.  He successfully completed basic combat and advanced individual training and was awarded military occupational specialty 13A (Field Artillery Basic).

3.  The applicant was assigned to Headquarters and Headquarters Service Battery, 2nd Battalion, 9th Field Artillery in the Republic of Vietnam from
25 March 1966 to 1 July 1967.

4.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) shows the entry laceration of the right eye and the date of injury is 29 June 1967.  

5.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows, on
2 July 1967, the applicant was assigned to the U. S. Army Hospital Okinawa in a patient status.  On 2 August 1967, he was assigned to the Medical Hold Company, Valley Forge General Hospital, Pennsylvania in a patient status.  

6.  U. S. Army Medical Center, Ryukyu Islands, Hospital Evacuation Order Number 231, dated 24 July 1967, transferred the applicant to Valley Forge General Hospital for further medical treatment and disposition. 

7.  A DA Form 8-275-2 (Clinical Record Cover Sheet) shows the entry “Wound, open, right eye, resulting in ruptured globe, repaired on 28 June 1967 in the Republic of Vietnam.  Patient was opening a box of 105 mm rounds and accidently hit a blasting cap.”  

8.  On 19 February 1968, the applicant was honorably released from active duty and placed on the Temporary Disability Retired List (TDRL) due to physical disability.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to the applicant shows he completed 2 years, 
4 months, and 1 day of active federal service.

9.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 does not contain an entry for the Purple Heart.

10.  There are no orders in the applicant's military service record awarding him the Purple Heart.

11.  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, failed to reveal any orders awarding the applicant the Purple Heart.

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

13.  The applicant's service medical records were not available for review.

14.  On 31 July 1972, a Physical Evaluation Board held at Walter Reed Army Medical Center found the applicant physically unfit for duty and recommended the applicant be permanently retired from the service.  Letter Order Number 
DO-50, published on 1 September 1972, shows the applicant was permanently unfit for duty by reason of physical disability, he was removed from the TDRL effective 30 September 1972, and he was permanently retired on 1 October 1972.

15.  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.  A wound is defined as an injury to any part of the body from an outside force or agent sustained as a result of hostile action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to award of the Purple Heart for an eye injury. 

2.  The applicant's DA Form 20 does show he was wounded.  However, the applicant’s name does not appear on the Vietnam Casualty Listing nor were orders found through a search of ADCARS awarding him the Purple Heart.  

3.  While the applicant's service medical records were not available for review, the applicant’s Physical Evaluation Board proceedings were available.  The applicant’s DA Form 8-275-2 shows he suffered an eye injury as a result of a non-hostile accident.  The injury occurred during the performance of his routine duties while handling 105 mm rounds. 

4.  In the absence of military records which show 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.

5.  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 that 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)                                         AR20080019155



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ABCMR Record of Proceedings (cont)                                         AR20080019155



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