IN THE CASE OF:	

		BOARD DATE:	18 August 2009  

		DOCKET NUMBER:  AR20080019396 


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 essentially states he was wounded in combat, and that due to his experiences, he was not able to grasp the level of injustice until recently.  He also states that he suffered shell fragment wounds to both of his legs and that he still suffers today.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); two pages of his service medical records showing treatment from 24 July 1969 to 8 August 1969; a letter, dated 7 March 2008, from the Department of Michigan office of the American Legion; and two self-authored Veterans Administration (VA) Forms 21-4138 (Statement in Support of Claim) 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 7 January 1969.  He completed basic and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He departed for the Republic of Vietnam on 5 July 1969 and served with two different companies within the 4th Battalion, 23rd Infantry Regiment, 25th Infantry Division.  He returned to the continental United States on 30 June 1970 and served at Fort Polk, Louisiana until he was honorably released from active duty on 6 January 1971.  The DD Form 214 that he was issued at the time of his release from active duty shows that he was awarded the National Defense Service Medal, the Combat Infantryman Badge, the Army Good Conduct Medal, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, the Republic of Vietnam Campaign Medal with 1960 Device, the Vietnam Service Medal, and the Army Commendation Medal with First Oak Leaf Cluster.  He transferred to the United States Army Reserve, and on 13 March 1980 he enlisted in the Michigan Army National Guard.  On 1 June 1998, he was discharged from the Army National Guard and assigned to the USAR Control Group (Retired Reserve).  On 12 July 2007, he was placed on the retired list.

3.  Item 41 (Awards and Decorations) of his DA Form 20 (Enlisted Qualification Record) does not show that he was awarded the Purple Heart, and item 40 (Wounds) of this same document does not show that he sustained any wounds or injuries as a result of hostile action.  There are no orders in his military records awarding him the Purple Heart, and there is no evidence anywhere in his military records which shows that he should have been awarded the Purple Heart.  Additionally, the applicant's name is not listed on the Vietnam Casualty Roster.

4.  The applicant provided two pages of his service medical records which show that he was treated for a small fragment wound on his left knee and/or shin in July 1969.  In response to a previous application from the applicant which was returned without action, a member of the ABCMR staff informed the applicant that in light of the fact that he continued his military career until he achieved Reserve retirement, his application requesting to be awarded the Purple Heart required some explanation.  The applicant was also advised that even though his medical records show he was treated for a fragment wound, there was no evidence to show that the fragment was the result of hostile action.  It was explained to the applicant that fragment wounds can be sustained accidentally by things like live ammunition cooking off in a trash fire, and that he needed to provide some evidence that he was wounded while in action against the enemy or as the result of enemy action.  He was further informed that the easiest way for him to get what is needed would probably be for him to obtain a sworn statement from one of his Vietnam comrades-in-arms stating that they were present when he sustained his fragment wound and describing the circumstances.

5.  In response, the applicant provided two VA Forms 21-4138, but they were both self-authored statements, one of which he did not authenticate with his signature.  In these statements, the applicant essentially stated that one of his fellow Soldiers was killed on 16 March 1970 and that they were in the same fierce engagement  when they came under heavy fire and suffered many wounded and dead.  He also contended that as evident by his receipt of the Bronze Star Medal, he and his fellow Soldiers performed their duty under extreme conditions.  Further, he indicated that he attempted to contact a former Soldier with the last name of Lane, but to no avail.  Additionally, he opined that his squad leader, first sergeant, platoon leader, and commanding officer failed to ensure that proper honors were bestowed upon him and others, and that during the firefight on 16 March 1970 many things were not covered or mentioned the way they should have.

6.  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.

7.  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 applicant's contention that proper honors were not bestowed upon him and others for their actions during a 16 March 1970 firefight was considered.  The applicant was specifically awarded the Bronze Star Medal for meritorious achievement in connection with military operations against a hostile force on that specific date.  As a result, it would appear that his chain of command was well aware of his actions on that date, and that if he were wounded in action on that date as well, he undoubtedly would have also received the Purple Heart.

4.  While the applicant provided two pages of service medical records showing that he was treated for a fragment wound in his left leg, there is no evidence in the applicant's military records, and the applicant failed to provide any evidence which conclusively proves by a preponderance of the evidence, that this wound was the result of hostile action.  While the sincerity of the applicant's claim to entitlement to award of the Purple Heart is not questioned, regrettably, absent evidence which conclusively shows that the applicant was wounded or injured as a result of hostile action, there is an 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:

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)                                         AR20080019396



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ABCMR Record of Proceedings (cont)                                         AR20080019396



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