IN THE CASE OF:	  

		BOARD DATE:	  	   7 April 2009

		DOCKET NUMBER:  AR20090001015 


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 the PH for injuries that were incurred as a result of direct enemy attacks while serving in the Republic of Vietnam (RVN) in 1971.  The applicant also states that he was assigned to Headquarters and Headquarters Company (HHC), 326th Engineer Battalion, 101st Airborne Division, as a heavy bulldozer operator.  In May or June 1971, he was ordered to remove a bulldozer from the trailer.  While attempting to unload the machine, the enemy had located their position and started a mortar attack on them.  In the mayhem of the attack, the bulldozer slid off the trailer sideways, hit the ground at an angle, and rolled over four times down into a canyon.  He was trapped inside the bulldozer, which had a protective cage, but he was rendered unconscious with a severe head trauma and spinal injury.  He was airlifted from the location back to the infirmary at his base camp, but to this day he has no recollection of any of the details.  He was treated and given two days of rest with no duty.  He requested to return to duty and he was returned to a new assignment.  Six years after his discharge, he would require surgery for ongoing inner ear problems.  To date, lower back problems have been a constant issue to the point of an early medical retirement from his career as a professional firefighter.  The lower back and inner ear problems surfaced the first summer 

home from his military discharge.  He knows that he must consider the possibility of the lack of documentation as medical records seem at best to be a bit on the unfocused priority.

3.  The applicant provides a self-authored letter 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 enlisted in the Regular Army and entered active duty on 30 June 1970.  He was trained in and awarded military occupational specialty (MOS) 62E (Crawler Tractor Operator).  The highest grade he attained was pay grade E-5.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he 
served in the RVN from 30 April 1971 through 30 December 1971.  Item 38 (Record of Assignments) of this document shows, in pertinent part, that he was assigned to HHC, 326th Engineer Battalion, (Airmobile), Vietnam.  Item 40 (Wounds) of the applicant's DA Form 20 is blank.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 contains no entry showing he was awarded the PH.
 
4.  The applicant's Official Military Personnel File (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.  The OMPF also does not contains any medical treatment records that indicate he was ever treated for a combat-related wound or injury while serving in the Vietnam. 


5.  On 31 December 1971, the applicant was honorably released from active duty after completing a total of 1 year, 6 months, and 1 day of active military service and transferred to the U.S. Army Reserve (USAR) Control Group (Annual 
Training) to complete his remaining Reserve obligation.  The PH is not shown on his DD Form 214.

6.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  There was no entry pertaining to the applicant on this list of Vietnam casualties.  

7.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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 by medical personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of entitlement to the Purple Heart was carefully considered.  However, by regulation, in order to be awarded the PH, substantiating evidence must be presented to show that the Soldier was wounded as the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

2.  The applicant's military record 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.  It also contains no medical treatment records that indicate he was ever treated for a combat-related wound while serving in the Vietnam.  

3.  Further, the applicant's name is not included on the Vietnam Casualty Roster, the official DA list of Vietnam battle casualties.  Absent any evidence of record confirming the applicant was wounded in action or treated for a combat-related wound while serving in Vietnam, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.


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)                                         AR20090001015



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ABCMR Record of Proceedings (cont)                                         AR20090001015



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