IN THE CASE OF:	  

		BOARD DATE:	  26 February 2009

		DOCKET NUMBER:  AR20090000769 


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, that he be awarded the Purple Heart.

2.  The applicant states, in effect, that he was never awarded the Purple Heart for wounds he received while serving in the Republic of Vietnam.

3.  The applicant provides two pages of a Standard Form 600 (Chronological Record of Medical Care) from his health record, dated 9-10 May 1967; and a Standard Form 519A (Radiographic Report), dated 30 May 1967, in support of his request.

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 that he was inducted into the Army of the United States in the rank and pay grade of private/E-1 on 15 December 1965.  He completed basic combat training and advanced individual training at Fort Lewis, Washington.  Upon completion of his one-station unit training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was advanced to the rank and pay grade of specialist four/E-4 on 8 March 1967.

3.  The applicant served in the Republic of Vietnam from 22 September 1966 through 20 September 1967.

4.  The applicant was honorably released from active duty on 21 September 1967 in the rank and pay grade of specialist four/E-4.  On the date he was released from active duty, he had completed 1 year, 9 months, and 4 days of active military service.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded the Vietnam Service Medal, the National Defense Service Medal, the Republic of Vietnam Campaign Medal, the Combat Infantryman Badge, the Expert Marksmanship Qualification Badge with Rifle Bar (M-14 Rifle), and the Sharpshooter Marksmanship Qualification Badge with Pistol Bar (45 Caliber Pistol).  The Purple Heart is not shown on his DD Form 214.

6.  There is no entry in item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) to show that he received a wound in action against a hostile force.

7.  Item 41 (Awards and Decorations) of the applicant’s DA Form 20 does not show that he was awarded the Purple Heart.

8.  There are no orders in the applicant’s military personnel records awarding him the Purple Heart.

9.  The applicant’s name does not appear on the Vietnam casualty list.

10.  A DD Form 1380 (U.S. Field Medical Card), dated 8 May 1967, which is in the applicant’s military record, states that the applicant’s injury was described as, "penetrating shrapnel in leg, possibly in joint space."  Item 16 (Injury – Enemy Action) of the DD Form 1380 states that the applicant’s injury was due to enemy action.

11.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 10 May 1967, which is in the applicant’s military record, states that the injury the applicant received while in Vietnam and is now requesting award of the Purple Heart for was not a battle injury nor an injury as a result of hostile action.  Item 15 (Remarks) of the DA Form 2173 states that the applicant [patient] was standing near 55 gallon drums which were being blown up; therefore, his injury was characterized as a non-battle injury and not as injured as a result of hostile action.

12.  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, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  To be awarded the Purple Heart, substantiating evidence must be provided to verify that a wound was received as a result of enemy action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

2.  The applicant provided documentation verifying that he was wounded by shrapnel while serving in the Republic of Vietnam.  It is acknowledged that the DD Form 1380 indicates his injury was due to enemy action.  However, the DA Form 2173 contains details of the circumstances surrounding his injuries, and those details show that he was injured while standing near 55 gallons drums which were being blown up and not by hostile action.  The DA Form 2173 states that the applicant’s injury was a non-battle injury and that he was not injured as a result of hostile action.

3.  There is no entry in item 40 of the applicant's DA Form 20 to show he received a wound in action against a hostile force.  There is no entry in item 41 of his DA Form 20 to show he was awarded the Purple Heart.

4.  There are no orders in the applicant's military personnel records awarding him the Purple Heart.  His name does not appear on the Vietnam casualty list.

5.  Based on the preponderance of the evidence of record, the applicant is therefore not entitled to award of the Purple Heart or have it added 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)                                         AR20090000769



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ABCMR Record of Proceedings (cont)                                         AR20090000769



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