IN THE CASE OF:	  

		BOARD DATE:	  31 MARCH 2009

		DOCKET NUMBER:  AR20090000446 


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 (PH).

2.  The applicant states, in effect, that he sustained a concussion as a result of a satchel charge explosion while serving in the Republic of Vietnam (RVN) and he was promised a PH during his hospitalization.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of his 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 record shows that he was inducted into the Army of the United States (AUS) and entered active duty on 3 June 1969.  He was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 5 December 1969 to 10 November 1970, and that during this RVN tour, he was assigned to Company A, 2nd Battalion, 502nd Infantry Regiment, performing duties in MOS 11B as a rifleman, automatic rifleman, and machine gunner.  Item 40 (Wounds) is blank and Item 41 (Awards and Decorations) does not include the PH in the list of earned awards entered.

4.  The applicant's record is void of any orders or other documents that indicate he was ever recommended for or awarded the PH.  It also contains no medical treatment records that indicate he was ever treated for a combat-related wound while serving in the RVN.  

5.  On 2 June 1971, the applicant was honorably released from active duty (REFRAD) after completing 2 years of active military service.  The DD Form 214 he was issued at the time does not show award of the PH.

6.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant's name is not included on this casualty listing.

7.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that the PH is awarded to any member who has been wounded or killed in action. A wound as an injury to any part of the body from an outside force or agent sustained under conditions defined by this regulation.  In order to support awarding a member the PH, the awards regulation stipulates that it is necessary to establish that the wound, for which the award is being made, required treatment by a medical officer.  This treatment must be supported by records of medical treatment for the wound or injury received in action, and must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been awarded the PH based on a concussion injury he received as a result of a satchel charge explosion while serving in the RVN was carefully considered.  However, by regulation, in 
order to support award of the PH, it is necessary to establish that the wound, for which the award is being made, was received as a direct result of or was caused by enemy action, that it required medical treatment by medical personnel, and a record of this medical treatment must have been made a matter of official record.  
2.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action, and his record is void of any orders or other documents that show he was ever recommended for or awarded the PH by proper authority while serving on active duty.  There are no medical treatment records on file that indicate he was ever treated for a combat-related wound or injury while serving in the RVN and the PH is not included in the list of awards contained on his DA Form 20 and/or DD Form 214.  Further, his name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  

3.  Absent any evidence of record or independent evidence submitted by the applicant that confirms he was wounded as a result of enemy action or that he was ever treated for a combat-related wound or injury by military medical personnel while serving in the RVN, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  As a result, it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to support award of the PH 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 applicant and all others concerned should know that this action related to award of the PH 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)                                         AR20090000446



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090000446



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1