IN THE CASE OF:	  

		BOARD DATE:	  28 April 2009

		DOCKET NUMBER:  AR20090000595 


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 is requesting award of the PH for an incident that happened in the Republic of Vietnam (RVN) on 14 March 1969.  He further states that the order for the award was never submitted by the company commander.

3.  The applicant provides the following documents in support of his application:  
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); Standard Form (SF) 600 (Chronological Record of Medical Care); and Page 3 of DA Form 20 (Enlisted Qualification Record). 

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 he enlisted in the Regular Army and entered active duty on 24 July 1967, and that he was trained in and awarded military occupational specialty (MOS) 12B (Combat Engineer).

3.  The applicant’s DA Form 20 shows he served in the RVN from 14 February 1968 through 13 September 1969.  Item 38 (Record of Assignments) shows that during his RVN tour he was assigned to Company C, 307th Engineer Battalion, 82nd Airborne Division, performing duties in MOS 12B as a light truck driver, combat engineer, combat construction specialist, and pioneer. 

4.  Item 40 (Wounds) of the applicant's DA Form 20 is blank and Item 41 (Awards and Decorations) shows he earned the following awards during his active duty tenure:  National Defense Service Medal (NDSM), Parachutist Badge, Vietnam Service Medal (VSM), RVN Campaign Medal (RVNCM), Army Commendation Medal (ARCOM), Bronze Star Medal (BSM), 3 Overseas Service Bars, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  The PH is not included in the list of awards contained in Item 41.

5.  The applicant's Official Military Personnel File (OMPF) contains an SF 600, dated 15 March 1969.  This document indicates the applicant received lacerations to both his legs after being hit by a tire that had blown off a vehicle. This document provides no indication that this accident was the result of enemy action.

6.  The applicant's OMPF is void of orders or other documents that indicate he was ever wounded in action or recommended for or awarded the PH and there are no medical treatment records on file that indicate he was ever treated for a combat-related wound or injury.  His name is not listed on the Vietnam Casualty Roster.  

7.  On 5 August 1970, the applicant was honorably released from active duty (REFRAD) after completing a total of 3 years of active military service.  The 
DD Form 214 he was issued at the time shows he earned the following awards:  NDSM, VSM, RVNCM, Parachutist Badge, BSM, and ARCOM.  The PH is not included in the list of awards contained on the separation document and the applicant authenticated the DD Form 214 with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his REFRAD.


8.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH.  It states, in pertinent part, that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that the wound required treatment by medical personnel, and a record of this medical treatment must have been made a matter of official record.  Paragraph 2-8h provides examples of injuries or wounds which clearly do not justify award of the PH.  Included in this list are accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the PH based on wounds he sustained to his legs after being hit by a tire was carefully considered. However, by regulation, accidents or accidental wounding not related to or caused by enemy action clearly do not justify award of the PH.  In order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action; that the wound required treatment by medical personnel; and a record of this medical treatment must have been made a matter of official record and accidents not . 

2.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action, and the PH is also not included in the list of awards contained in Item 41.  Further, his OMPF is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty, or of medical treatment records that indicate he was ever treated for a combat-related wound or injury.  Finally, the PH is not included in the list of awards contained on his DD Form 214 and his name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  

3.  The SF 600 provided by the applicant shows he was injured as a result of an accident.  It fails to indicate this injury was received as a result of or caused by enemy action.  Therefore, absent any evidence of record confirming the applicant was wounded in action or treated for a combat-related wound while serving in the RVN, the regulatory burden of proof necessary to support award of the PH has not been satisfied 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 related to award of the PH.   

5.  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.  

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)                                         AR20090000595



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ABCMR Record of Proceedings (cont)                                         AR20090000595



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