IN THE CASE OF:	  

		BOARD DATE:	       26 March 2009

		DOCKET NUMBER:  AR20090000389 


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, award of the Purple Heart. 

2.  The applicant states, in effect, he was wounded in action while serving in the Republic of Vietnam (RVN), but he never received the Purple Heart.

     a.  The applicant states that sometime in the spring of 1969 in the RVN, his unit was going up a mountain in tall grass and he was walking point when a grenade landed between him and the Soldier behind him.  He states that he somersaulted into the air away from the blast and received shrapnel in his back, while the Soldier behind him took the brunt of the blast to his neck, chest, and face.  He adds that the other Soldier was medically evacuated; however, the unit’s medic treated him in the field and pulled the shrapnel out of his back.

     b.  The applicant states he was recently at the Department of Veterans Affairs (VA), Saginaw Regional VA, getting a physical examination.  While talking to the nurse he mentioned he served in the RVN and had received a piece of shrapnel in his back.  The nurse responded by saying, “[t]hen you have a Purple Heart.” The applicant explained to the nurse that the unit medic treated him in the field, but he was not medically evacuated, and he did not know that he was entitled to the Purple Heart.

3.  The applicant provides a self-authored statement, dated 11 November 2008.


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 was inducted into the Army of the United States and entered active duty for a period of 24 months on 13 December 1967.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 11D (Armor Intelligence Specialist).

3.  The applicant's military personnel records contain a DA Form 20 (Enlisted Qualification Record).

	a.  Item 31 (Foreign Service) shows that he served in the U.S. Army Pacific (USARPAC) in the Republic of Vietnam (RVN) beginning 28 November 1968.

   b.  Item 38 (Record of Assignments), in pertinent part, shows that while serving in the RVN, the applicant was assigned to Troop A, 2nd Battalion, 17th Cavalry (Airmobile), USARPAC, from 13 December 1968 through 5 March 1969.  He was then assigned to Headquarters and Headquarters Company, 2nd Battalion (Airmobile), 501st Infantry, 101st Airborne Division (Airmobile), USARPAC, on 6 March 1969.

   c.  Item 40 (Wounds) is absent an entry.

	d.  Item 41 (Awards and Decorations) fails to show he was awarded the Purple Heart.

4.  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's Vietnam Casualty Listing confirmed that the applicant’s name is not listed.

5.  A thorough 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.

6.  The applicant's military personnel records contain a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he entered active duty on 13 December 1967.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) does not show he was awarded the Purple Heart.  The DD Form 214 does show the applicant was honorably released from active duty on
3 November 1969 and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining military service obligation.  At the time he had completed 1 year, 10 months, and 21 days of net active service this period and 11 months and 6 days of foreign service.

7.  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.  The applicant contends, in effect, that his records should be corrected to show award of the Purple Heart because he was wounded in action in the spring of 1969 while serving in the RVN.

2.  The applicant’s claim that he received a shrapnel wound to his back in the spring of 1969 while serving in the RVN was carefully considered.  However, he provides insufficient evidence in support of his claim for award of the Purple Heart.

3.  The applicant provides no official documentary evidence pertaining to the injury (e.g., battle casualty report, medical treatment records, etc.) in support of his request.  There is no evidence in the applicant’s military personnel records that show he was wounded 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 Adjutant General's Office Casualty Division's Vietnam Casualty Listing; and there are no orders in the applicant’s military personnel records that show he was awarded the Purple Heart.  In addition, there is no evidence in the applicant’s military service records that shows he was wounded as a result of hostile action, that such wound required treatment by medical 
personnel, or that the medical treatment was made a matter of official record.  In view of all of the foregoing, there is insufficient basis for awarding the Purple Heart to the applicant 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)                                         AR20090000389



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ABCMR Record of Proceedings (cont)                                         AR20090000389



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