IN THE CASE OF:	

		BOARD DATE:	  7 April 2009

		DOCKET NUMBER:  AR20090001074 


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 his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show the award of the Purple Heart.

2.  The applicant states, in effect, that he received a head wound in combat on 24 April 1971 in the Republic of South Vietnam while serving with Company D, 4th Battalion, 21st Infantry, 23rd Infantry Division.

3.  In an addendum to his application to the Board, the applicant continues,          in effect, that when he was wounded his left ear ruptured, he bled, lost consciousness, and he lost total hearing in that ear.  He adds that he did not     take the medevac; he had one man killed and six wounded in action and he had to get them out at night.  He was treated in the field and was medically evacuated when he contracted malaria in July 1971.

4.  The applicant's stated he was a platoon leader and not a team leader as indicated on the line entry dated 25 August 1970 (of his DA Form 20 (Enlisted Qualification Record)).  

5.  In support of his request, the applicant submitted a copy of his DD Form 214; a copy of a Standard Form (SF) 93 (Report of Medical History); a copy of page 4 of his DA Form 20; and a copy of an order medically evacuating him from Vietnam to Long Beach Naval Hospital, Long Beach, California, on 8 June 1971.



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 he enlisted in the U.S. Army Reserve Delayed Entry Program on 16 February 1965.  He enlisted in the Regular Army on 5 August 1965 and on 25 August 1966 he was honorably discharged for the purpose of immediately reenlisting.  The applicant reenlisted on 26 August 1966 and continued to serve until 31 August 1972 when he was honorably discharged in the rank of staff sergeant at the expiration of his term of service.  On his discharge date, the applicant had completed 7 years, 6 months, and 15 days of total service for pay purposes.

3.  The applicant served in Vietnam with Company D, 4th Battalion, 21st Infantry Regiment, 23rd Infantry Division, from 28 July 1970 to 22 July 1971 when he was medically evacuated to the United States.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the Republic of Vietnam Campaign Medal with Device (1960), the Vietnam Service Medal, the Army of Occupation Medal (Berlin), the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Expert Marksmanship Qualification Badge with Rifle Bar (M-16 Rifle), the Expert Marksmanship Qualification Badge with Rifle Bar (M-14 Rifle), the Army Commendation Medal, and the Good Conduct Medal.

5.  No entry appears in Item 40 (Wounds) of the applicant's DA Form 20 which is contained in his official military personnel file.  However, the copy of the DA Form 20 the applicant submitted has a hand written entry which appears to be in his 


handwriting that states, "Head wound - left ear & head.  Unconscious - bleeding from ear - lost hearing / 24 April 71."

6.  There is no entry in Item 41 (Awards and Decorations) of the applicant's DA Form 20 showing he was awarded the Purple Heart.

7.  The applicant's name does not appear on the Vietnam Casualty List.  The applicant's name also does not appear on the U.S. National Archives and Records Administration's Casualty Information System which has the names of deceased, wounded, ill or injured Army personnel, including dependents and civilian employees, recorded during the period from 1 January 1961 through December 1981.

8.  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, was conducted to determine if the applicant was awarded the Purple Heart.  This search failed to reveal any orders were published awarding the Purple Heart to the applicant.

9.  The SF 93 the applicant submitted originally had the following statements in Item 8 (Statement of Examinee's Present Health and Medications Currently Used), "Have ulcer was noted on UGI 16 Aug 72.  Hearing Loss."  The latter statement was changed to read, "Hearing Loss Due to Head Wound Apr 71."  A handwritten entry was also made on the reverse side of the SF 93 which 
reads:  "Apr 71  -  4/21 Head Wound."

10.  A DA Form 2139 (Military Pay Voucher) in the applicant's official military personnel files show he was hospitalized in Vietnam on 21 May 1971, departed Vietnam on 7 June 1971 and arrived in the Continental United States on the same date.  The applicant's departure from Vietnam was identified as "non hostile" by finance operating personnel.

11.  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 by medical personnel, 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 presented to show the applicant was wounded as a 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 stated in his request that he received a head wound in combat in April 1971; however, the information recorded on the forms in the applicant's official military personnel file do not support his statement.  The SF 93 and the DA Form 20 that he submitted were altered, where handwritten entries did not appear previously, entries now appear.  These entries cannot be confirmed without corroborating evidence.  Therefore, the available evidence is not sufficient to award the Purple Heart.

3.  The applicant's name does not appear on the Vietnam Casualty List.  The applicant's name also does not appear on the U.S. National Archives and Records Administration's Casualty Information System.  There are also no entries in his service personnel records that indicate he was wounded in action as a result of enemy action.

4.  The applicant provided no documentary evidence to show he was assigned to a platoon leader's position.  A review of documents on file in his official military personnel file failed to reveal an assignment order or other document to support the applicant's contention.

5.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090001074



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ABCMR Record of Proceedings (cont)                                         AR20090001074



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