DOCKET NUMBER:  AR20080019818 


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, correction of his records to show award of the Purple Heart.

2.  The applicant states, in effect, he received a Purple Heart medal while serving in the Republic of Vietnam (RVN).

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) with an effective date of 8 December 1978.

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 enlisted in the U.S. Army Reserve (USAR) for a period of 6 years on 22 March 1972 and entered the Delayed Entry Program (DEP).  He was discharged from the DEP on 23 May 1972 and enlisted in the Regular Army (RA) for a period of 3 years on 24 May 1972.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).  On 18 April 1975, the applicant extended his enlistment period for
6 months to 3 years and 6 months.  

3.  The applicant's military personnel records contain a copy of his DD Form 214 that shows he entered active duty on 24 June (sic) 1972 and was honorably discharged on 18 November 1975 for the purpose of immediate reenlistment in the RA.  At the time he had completed 3 years, 5 months, and 25 days of net active service this period; 2 months and 2 days of prior inactive service; 3 years, 7 months, and 27 days of total service for pay; and 1 month and 28 days of foreign service.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows he was awarded the National Defense Service Medal and Vietnam Service Medal.  Item 27 (Remarks), in pertinent part, contains the entry “Area of last Overseas tour:  Viet Nam.”

4.  The applicant reenlisted in the RA for a period of 6 years on 19 November 1975.  He completed the Flight Operations Coordinator course and was awarded MOS 71P as his primary MOS, effective 30 August 1976.

5.  The applicant's military personnel records contain a DA Form 2-1 (Personnel Qualification Record), prepared on 10 January 1977 and reviewed on
29 November 1977.

     a.  Item 4 (Assignment Considerations) is absent an entry.

     b.  Item 5 (Foreign Service) shows that he served in the Far East Pacific (FEPA) in the RVN from 8 November 1972 through 5 January 1973 and in the Republic of Korea from 25 November 1977 through 5 November 1978.

     c.  Item 9 (Awards and Decorations) fails to show he was authorized award of the Purple Heart.

6.  The applicant's military service records contain a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 17 August 1978.  The PEB Proceedings, in pertinent part, contain the following exchange between the applicant’s counsel and the applicant, “Question (Q):  When were you injured, Sergeant D_____?; Answer (A):  First part of ___ or latter part of 1972 or first part of 1973, in Vietnam; Q:  Can you describe that injury?; A:  How it happened?; Q:  Well, how it happened and --; A:  Yes, sir, I was out --; Q:  -- more important, what parts of your body were affected?; A:  Yes, sir, I was out picking up an emergency unit that was forced off the edge of the road, and I took the ambulance, went out to pick it up, and several Vietnamese, they were firing out in the field, and they came running up onto where my vehicle was, to find comfort or to get away, and they bumped me and I went off down over the cliff, where the ambulance was; I went down about 12 feet and jammed my knees, and cut my head open, and was knocked out, and that was the last thing I remember.  But when I came to, I was in great pain, but later I went to the dispensary after I got in, and they done nothing about it.  So --; Q:  You said you were in great pain.  What was especially painful?; A:  My knees and my head;
Q:  Was anything done at that point?; A:  Negative.; Q:  Your head injury was treated, wasn’t it?; A:  All they did was put a tape over it, and they gave me hard drugs for it.”

7.  The applicant’s military personnel records contain a DD Form 214 that shows he entered active duty this period on 19 November 1975, was honorably retired on 8 December 1978, under the provisions of Title 10, U.S. Code, section 1201, and placed on the permanent disability retired list.  At the time he had completed 3 years and 20 days of net active service this period; 3 years, 5 months, and
25 days of prior active service; 6 years, 6 months, and 15 days of total active service; 2 months and 2 days of prior inactive service; and 6 years, 8 months, and 17 days of total service for pay.  Item 26 shows he was awarded the Good Conduct Medal (2nd Award), National Defense Service Medal, Vietnam Service Medal with 1 bronze service star, Vietnam Campaign Medal with 1960 Device, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Marksman Marksmanship Qualification Badge with Rifle Bar.

8.  There is no documentation in the applicant’s military personnel records that shows he was wounded or treated for wounds as a result of hostile action.  In addition, a review of The Adjutant General's Office, Casualty Division, Casualty Reference Name Listing for Vietnam confirmed that the applicant’s name is not listed on the roster.

9.  A review of the applicant’s military personnel records revealed that there are no orders in the applicant’s records that show he was awarded the Purple Heart.

10.  A search of the U.S. Army Human Resources Command, Awards and Decorations Computer Assisted Retrieval System for the Vietnam Conflict failed to produce orders showing the applicant was awarded the Purple Heart.

11.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  This Army regulation, in pertinent part, states that the Purple Heart is awarded for a wound sustained as a result of hostile action.  It provides that substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.  This regulation also provides examples of injuries or wounds which clearly do not qualify for award of the Purple Heart and cites, in pertinent part, accidents involving explosive, aircraft, vehicular, and other accidental wounds or injuries not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show award of the Purple Heart because he received a Purple Heart while serving in the RVN.

2.  The applicant’s claim that he received the Purple Heart medal during his service in the RVN was carefully considered.  The applicant provides no official documentary evidence pertaining to the nature of the injury (e.g., battle casualty report, medical treatment records, etc.) in support of his request.  However, a review of the applicant’s PEB Proceedings reveals that the applicant was injured in the RVN when several Vietnamese came running up to his vehicle to find comfort or to get away; they bumped him; the applicant went down over a cliff; and he jammed his knees, cut his head, and was knocked out.  Thus, the evidence of record indicates the applicant’s injuries were the result of an accident.  The evidence of record also shows, in pertinent part, that injuries or wounds sustained as a result of accidents do not qualify for award of the Purple Heart.

3.  There is no evidence in the applicant’s military personnel records that show he was wounded or treated for wounds as a result of hostile action; his DA Form 2-1 does not list the Purple Heart in item 9; the applicant's name is not listed on The Adjutant General's Office, Casualty Division, Casualty Reference Name Listing for Vietnam; and there are no orders in the applicant’s military personnel records or in the U.S. Army Human Resources Command Awards and Decorations Computer Assisted Retrieval System that show the applicant was awarded the Purple Heart.  In addition, there is no evidence in the applicant’s military service records that show he was wounded as a result of hostile action, that such wound required treatment, or that the medical treatment was made a matter of official record.  Therefore, in view of the foregoing, the applicant is not entitled to award of the Purple Heart in this case.

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 this requirement.

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)                                         AR20080019818



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ABCMR Record of Proceedings (cont)                                         AR20080019818



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