IN THE CASE OF:	  

		BOARD DATE:	        09 APRIL 2009

		DOCKET NUMBER:  AR20090000845 


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 never received the Purple Heart for injuries he sustained from a jeep crash that was the result of a land mine detonation.  He also contends that the injuries he suffered will be noted in his claim filed with the Department of Veterans Affairs (DVA).

3.  Although the applicant indicates that he provided a copy of his DVA claim, no supporting documentation was received in support of this 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 military records show that he was inducted into the Army of the United States on 8 November 1966.  He completed initial entry training and was awarded military occupational specialty (MOS) 95B (Military Police).  After serving his initial permanent duty assignment at Fort Ord, California, he departed for the Republic of Vietnam on 3 October 1967.  On 11 September 1968, he was placed in a patient status with the Medical Holding Detachment, 249th General Hospital.  He returned to the continental United States on or about 18 September 1968, and was assigned to the Medical Holding Company, Ireland Army Hospital, Fort Knox, Kentucky on 22 September 1968.  On 19 December 1968, he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.

3.  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) that he was issued at the time of his release from active duty shows that he was awarded the Vietnam Service Medal, Republic of Vietnam Campaign Medal, and the National Defense Service Medal.  However, it does not show that he was awarded the Purple Heart.  Item 41 (Awards and Decorations) of his DA Form 20 (Enlisted Qualification Record) also does not show that he was awarded the Purple Heart, and item 40 (Wounds) of this document does not contain any entries indicating that he was wounded or injured as a result of hostile action.  There are no orders in his military records awarding him the Purple Heart, and a Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), 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 the Purple pertaining to the applicant.  Additionally, the applicant’s name is not listed on the Vietnam Casualty Roster.

4.  Information in the applicant's military records shows that a line of duty investigation was requested after he was released from active duty for what appears to be a fractured right leg which occurred during a jeep accident on 
26 August 1968.  However, the DA Form 2173 (Statement of Medical Examination and Duty Status) was not present in his military records.

5.  The applicant's military records did contain his separation physical; however, his Standard Form 89 (Report of Medical History) only shows that the applicant had a cyst removed from the floor of his mouth in January 1967.


6.  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 been treated by medical personnel, and the medical treatment must have been made a matter of official record.  Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire; the wound or injury must have required treatment by medical personnel; and the record of medical treatment must have been made a matter of official Army records.

7.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  This regulation further provides that the ABCMR is not an investigative body, and will decide cases on the evidence of record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart.

2.  The applicant's contention that he sustained injuries in a jeep accident was considered.  While it appears that he may have been in a jeep accident and suffered a broken leg, there is no evidence in the available records, and the applicant failed to provide evidence which conclusively proves, by a preponderance of the evidence, that any jeep accident he was in was the result of hostile action.

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 this requirement.

4.  While the sincerity of the applicant's claim to entitlement to award of the Purple Heart is not in question, absent evidence which conclusively shows that the applicant was wounded or injured as a result of hostile action, that he was treated by medical personnel at the time for wounds or injuries sustained as a result of hostile action, and that this medical treatment was made a matter of official record, there is insufficient basis upon which to award the Purple Heart to the applicant in this case.
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 the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______XXX________________
               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)                                         AR20090000845



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ABCMR Record of Proceedings (cont)                                         AR20090000845



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