IN THE CASE OF:	  

		BOARD DATE:	  7 July 2009

		DOCKET NUMBER:  AR20090001143 


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 (PH).  

2.  The applicant states, in effect, he received a fragment wound to his right forearm on 22 March 1968, while serving in the Republic of Vietnam (RVN).  

3.  The applicant provides a copy of his DA Form 20 (Enlisted Qualification Record) and a veterans’ claims officer letter with a unit log 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 was inducted into the Army of the United States and entered active duty on 27 September 1966.  He was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant’s DA Form 20 shows he was promoted to sergeant on 1 May 1968, and that this is the highest rank he attained while serving on active duty.  It also shows that he served in the RVN from 4 October 1967 through 30 June 1968.  Item 40 (Wounds) contains the entry “FW right arm, 22Mar68” which translates to "Fragment Wound-Right Arm-22 March 1968."  The PH is not included in the list of awards contained in Item 41 (Awards and Decorations).  Item 48 (Date of Audit) shows the applicant last audited his DA Form 20 on
27 June 1968.  

4.  The applicant’s Official Military Personnel File (OMPF) is void of orders or other documents that indicate he was ever recommended for or awarded the PH while serving in the RVN.  It is also void of any medical treatment records that show he was ever treated for a combat-related wound or injury while serving in the RVN.  The OMPF does contain a Standard Form (SF) 88 (Report of Medical Examination) completed on the applicant during his separation processing.  This document contains no entries that indicate the applicant was wounded in action, or treated for a combat-related wound or injury while serving on active duty.  

5.  On 1 July 1968, the applicant was honorably released from active duty (REFRAD) by reason of seasonal employment, after completing 1 year,
9 months, and 5 days of active military service.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows that during his active duty tenure, he earned the National Defense Service Medal, Vietnam Service Medal, RVN Campaign Medal, Combat Infantryman Badge, and 1 Overseas Service Bar.  The PH is not included in the list of awards entered on his DD Form 214.  

6.  The applicant provides, through his counsel, a DA Form 1594 (Daily Staff Journal or Duty Officer Log) for 22 March 1968, and highlights entries that indicates 7 members were wounded as a result of a booby trap explosion at 1435 hours.  The names of the 8 wounded were not identified on the log.  

7.  During the processing of this case, a staff member of the Board reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant’s name was not included on this list of RVN casualties.  



8.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-8 contains guidance on award of the PH.  It states, in pertinent part, in order to support award of the PH, there must be evidence confirming that the wound for which the award is being made was received as 
a result of enemy action, that it required treatment by medical personnel, and a record of this treatment must have been made a matter of official record.  

9.  Army Regulation 600-200, chapter 9 of the version in effect at the time, stated, in pertinent part, that a brief description of the wounds or injuries,(including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization would be entered in item 40 of the DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in item 40.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was awarded the PH which is not reflected on his DD Form 214 was carefully considered.  However, by regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action; that it required treatment by medical personnel; and that a record of the medical treatment was made a matter of official record.  

2.  Although the applicant’s DA Form 20 contains an entry indicating he suffered a fragment wound to his right arm on 22 March 1968, and the duty log he provides indicates 7 members were wounded as a result of a booby trap explosion at 1435 hours on 22 May 1968, there is no evidence of record confirming he was one of the 7 members wounded, and there are no medical documents on file that show he was treated for this wound by medical personnel.  Further, the PH is not included in the list of awards contained in item 41 of his DA Form 20, which he last audited on 27 June 1968, more than three months after the fragment wound, shortly before his REFRAD.  There is no indication that the applicant raised the PH issue at this time, or later when he was issued his DD Form 214 at separation, which also did not include the PH in the list of earned awards entered.  

3.  Finally, the applicant’s name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  As a result, absent any documentary evidence confirming the applicant was ever treated for his fragment wound by military medical personnel, or that he was ever recommended for or awarded the PH by proper authority while serving on active duty.  

4.  In view of the evidence of record in this case, notwithstanding the entry in Item 40 of his DA Form 20 and the unit log entry provided, the regulatory burden of proof necessary to include the requirement of  medical care and that care be documented in the record in order to support award of the PH has not been satisfied in this case.  As a result, it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to support awarding the applicant the PH at this late date.  

5.  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 related to award of the PH.   

6.  The applicant and all others concerned should know that this action related to award of the PH 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.  

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)                                         AR20090001143



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ABCMR Record of Proceedings (cont)                                         AR20090001143



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