IN THE CASE OF:	  

		BOARD DATE:	  12 May 2009

		DOCKET NUMBER:  AR20080019934 


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

2.  The applicant states he was wounded in action while stationed in Vietnam.

3.  The applicant provides a statement from a fellow Soldier, a copy of a Department Veteran's Affairs (VA) disability compensation document, and a miscellaneous VA printout 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 records show he was inducted into the Army of the United States on 29 April 1968.  He completed basic combat and advanced individual training and was awarded the military occupational specialty of combat demolitions specialist.  The applicant was honorably discharged for the purpose of immediate enlistment on 20 March 1970.

3.  He served continuously thereafter, reenlisting on 21 March 1970, 8 January 1976, and 12 February 1980.  He was promoted to pay grade E-6.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record), item 5 (Oversea Service) shows he served in the Republic of Vietnam during the period 3 August 1969 to 27 May 1970. 

5.  The applicant's DA Form 20 (Enlisted Qualification Record), item 40 (Wounds), contains no entries.  Item 41 (Awards and Decorations) does not show the Purple Heart.

6.  The applicant's records show he was released from active duty and placed on the Permanent Disability Retired List on 19 May 1984 with a 70 percent disability rating after completing 16 years and 20 days of creditable active service.

7.  A DA Form 3713 (Data for Retired Pay) contained in the applicant's records show that his disability was not caused by a combat-related injury and the applicant's name does not appear on the Vietnam Casualty Roster.

8.  The applicant provided a written statement from a fellow Soldier indicating the applicant was wounded in action by a booby trap in July 1970 and he was evacuated to the “85 EVAC Hospital in Qui Rhon, South Vietnam” for treatment.  

9.  The applicant's Narrative Summary (Clinical Resume), dated 12 December 1983, shows the applicant stated to medical personnel or to the medical board that he had a history of head trauma with shrapnel wound to the head in Vietnam and that he underwent a craniotomy at that time.  However, there is no available evidence that shows the applicant was wounded while in combat.

10.  A review of the applicant's medical examination completed in December 1983 does not indicate he was injured during his military service.





11.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and procedures concerning awards.  It 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.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The 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.  There are no orders in the applicant's service personnel records which show he was awarded the Purple Heart.  There also is no evidence in his records that he was wounded or treated for wounds as a result of hostile action.  His DA Form 20 does not show an entry in Item 40 or list the Purple Heart in Item 41.  The applicant's name is not listed on the Vietnam Casualty Roster.

2.  The statement written by the applicant’s fellow Soldier along with the evidence that was available in the applicant’s records, to include the Narrative Summary, dated 12 December 1983, was considered.  However, in the absence of evidence that the applicant was wounded or injured as a result of hostile action and an official medical record showing he was treated for such a wound, there is insufficient evidence upon which to base award of the Purple Heart.  As a result, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  Therefore, there is no basis for adding this award to his DD Form 214.

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)                                         AR20080019934



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ABCMR Record of Proceedings (cont)                                         AR20080019934



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