IN THE CASE OF:	

		BOARD DATE:	  2 April 2009

		DOCKET NUMBER:  AR20090000786 


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 award of two Purple Hearts, a Bronze Star with "V" Device, and an Army Commendation Medal with "V" Device.

2.  The applicant states that the Army came to his mother’s house and presented her with two Purple Hearts, a Bronze Star Medal with "V" Device, and an Army Commendation Medal with "V" Device.  He states his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) dated 22 January 
1970 does not reflect these awards and the Department of Veterans Affairs is harassing him because his DD Form 214 does not accurately reflect awards received.

3.  In support of his application, the applicant provides copies of his DD Form 214; a letter dated 13 June 2008 from Department of the Army Review Boards Agency Support Division stating the Army Discharge Review Board is not the applicable Board to review his case; and a letter dated 10 November 2008 from the National Personnel Records Center stating they are the physical custodian of military records of former members of the U.S. Armed Forces and referring the applicant to U.S. Army Human Resources Command.

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.  A review of the applicant’s military personnel record shows a DD Form 215 (Correction to DD Form 214, Certificate or Release or Discharge from Active Duty) issued on 17 July 1984 corrects item 24 of the applicant’s DD Form 214 to show award of the Bronze Star Medal with "V" Device, Army Commendation Medal with "V" Device, Purple Heart, and Combat Infantryman Badge.  Therefore, these awards will not be discussed further in these proceedings.

3.  The applicant's military personnel record shows he was inducted into the Army of the United States on 23 January 1968 for a 2-year period.  He successfully completed basic combat and advanced individual training.  He was awarded the military occupational specialty 11H (Heavy Anti-Armor Weapons Infantryman).

4.  The applicant was assigned to C Company, 2nd Battalion, 27th Infantry, serving in the Republic of Vietnam from 23 August 1968 to an unknown date in October 1968, then assigned to Detachment 1, 25th Infantry Division, from an unknown date in October 1968 to 17 April 1969.

5.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) contains the entry "fragment wounds to right lateral thigh, chest, right and left arm, and back."  The entry is dated 7 April 1969.

6.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not show award of the Purple Heart.

7.  On 22 January 1970, the applicant was released from active duty.  Records show he completed 2 years of active service characterized as honorable and served in the Republic of Vietnam for 8 months and 8 days.

8.  Item 24 (Decorations, Medal, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214, which he authenticated in his own hand, shows the National Defense Service Medal, Vietnam Service Medal, Expert Marksmanship Qualification Badge with Automatic Rifle Bar, Expert Marksmanship Qualification Badge with Rifle Bar, and First Class Gunner (Sharpshooter) Marksmanship Qualification Badge with Recoilless Rifle Bar.

9.  The applicant’s name is not listed on the Vietnam Casualty Roster as being wounded on any date.

10.  There are no orders in the applicant's military personnel service records awarding him the Purple Heart.

11.  Review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for awarding the applicant the Purple Heart.

12.  A review of the applicant’s military personnel record shows a copy of a Western Union telegram dated 8 April 1969 which shows the applicant was wounded on 7 April 1969 in the Republic of Vietnam when his area came under rocket attack.  The Western Union telegram shows the applicant suffered wounds to the right lateral thigh and to the chest.

13.  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.  A Purple Heart is authorized for the first wound suffered under conditions indicated above, for each subsequent award an oak leaf cluster will be awarded and worn on the medal or ribbon.  Not more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force, explosion, or agent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 does not show award of two Purple Hearts.

2.  Item 40 of the applicant’s DA Form 20 does not show a second entry for wounds requiring medical treatment received through hostile or enemy action.  In the absence of military and medical records showing that the applicant was wounded a second time or treated for wounds resulting from hostile action separate from injuries incurred on 7 April 1969, there is insufficient evidence upon which to base award of the Purple Heart with Oak Leaf Cluster in this case.
3.  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 award of the Purple Heart with Oak Leaf Cluster.

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 merit of the request for award of the Purple Heart with Oak Leaf Cluster is 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)                                         AR20090000786



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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