IN THE CASE OF:	  

		BOARD DATE:	        12 FEBRUARY 2009

		DOCKET NUMBER:  AR20080019484 


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 he be awarded the Purple Heart.

2.  The applicant states, in effect, that while he was in Vietnam he was wounded by shrapnel when a B-40 rocket exploded and a machine gun blew up during an engagement with the enemy.  He also states that the shrapnel is still in his leg. He goes on to state that he was serving with a transportation terminal unit and was assigned to help a Korean company that had a contract to deliver supplies to the Army up and down the coast of Vietnam because of his prior experience with the weapons on the vessel, primarily a .50 caliber machine gun.  While en route to Da Nang, he decided to test fire the machine gun and fired it into the jungle in a free-fire zone.  However, there were enemy Soldiers in the jungle and they returned fire.  He continues by stating that he returned fire until the machine gun malfunctioned and he proceeded to correct the problem.  Meanwhile, the enemy fired a B40 rocket at the vessel and while it hit short, he received shrapnel from the explosion. After correcting the problem with the machine gun he attempted to return fire and it blew up.  The enemy retreated and he was taken to a hospital in Da Nang.  He also states that he was told by the Korean contractors that he would receive a Purple Heart; however, it never materialized.

3.  The applicant provides a two-page handwritten statement of the events surrounding his wounds, a copy of his DD Form 214, and a clinical record cover sheet (DA Form 8-275-3).



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 enlisted in the United States Navy Reserve (USNR) on 3 December 1962.  He was ordered to active duty on 10 April 1964 and served on active duty, to include service in Vietnam, until he was honorably released from active duty (REFRAD) on 22 January 1966 and was returned to the USNR.  On 26 September 1966, he was honorably discharged from the USNR.

3.  On 27 September 1966, he enlisted in the Regular Army for a period of 3 years and training as a tactical wire operations specialist.  He completed his training and was transferred to Vietnam on 10 August 1967.  He was promoted to the pay grade of E-5 on 5 August 1968 and he completed his tour in Vietnam on 1 September 1968 and was transferred to Fort Sill, Oklahoma.

4.  He was transferred back to Vietnam on 6 May 1970 and was initially assigned as a squad leader in military occupational specialty (MOS) 11B40 (light weapons infantryman) at the United States Army Transportation Terminal Unit in Qui Nhon.  On 17 December 1970, he was assigned the duties of a marine engineer.  He departed Vietnam on 9 April 1971 for assignment to Fort Story, Virginia for duty as an Amphibian Engineer.

5.  The applicant remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-7 on 19 February 1979.

6.  On 31 December 1984, he was honorably REFRAD in the pay grade of E-7 and was transferred to the Retired List effective 1 January 1985.  He had served 20 years, 1 month and 13 days of total active service. 

7.  The clinical Record Coversheet provided by the applicant with his application indicates that the applicant was treated for superficial entry wounds of the lower extremities on 11 August 1970.  It indicates that the applicant's wounds were accidentally incurred at 1000 hours, 11 August 1970 when he was on an LCU (Landing Craft Utility) test firing a 50 caliber when he chambered a round and it blew up south of Chu Lai.  

8.  A review of the Vietnam Casualty Listing fails to show that the applicant was reported as a casualty.  A review of the available records also fails to show that the applicant was ever deemed to have been wounded or injured as a result of enemy action and there is no evidence to show that he was ever awarded 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 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.  While the sincerity of the applicant's claim that he was wounded as a result of enemy action is not in doubt, there simply is no evidence in the available records to support his claim. 

2.  The document submitted by the applicant with his application clearly states that the applicant's wound was accidently incurred and he has failed to submit evidence to dispute that document. 

3.  Therefore, in the absence of evidence to show that the record of treatment is in error and that the applicant's wound was the result of enemy action, there appears to be no basis to grant his request at this time.

4.  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.




      _______ _ 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)                                         AR20080019484





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ABCMR Record of Proceedings (cont)                                         AR20080019484



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