IN THE CASE OF:	  

		BOARD DATE: 	        2 June 2009

		DOCKET NUMBER:  AR20090001543 


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 and that it be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states, in effect, that he received his decorations from his Congressman several years ago but no Purple Heart.  He adds that he was wounded and has proof and sees no reason why he shouldn't get the Purple Heart.

3.  In support of his request, the applicant submitted a copy of a Standard Form 600 (Chronological Record of Medical Care) and a Standard Form 519A (Radiographic Report).

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 that he was inducted into the Army of the United States on 19 May 1966.  He completed basic combat training at Fort Polk, Louisiana, and his advanced individual training at Fort Leonard Wood, Missouri.  After completing all required training, he was awarded military occupational specialty 62B (Engineer Equipment Repairman).

3.  The applicant served in Vietnam with Company D, 15th Engineer Battalion of the 9th Infantry Division, from 29 July 1967 through 11 May 1968.

4.  The applicant was honorably released from active duty on 13 May 1968 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations) as an early separation of overseas returnee.  He was released from active duty in the rank of specialist five, pay grade E-5.  On the date he was released from active duty he had served 1 year, 11 months, and 25 days of active military service with no time lost.

5.  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 Vietnam Service Medal and the National Defense Service Medal.  The Purple Heart is not shown.

6.  No entry appears in item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) to show he received a wound in action against a hostile force while he served in Vietnam.

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, or ill or injured Army personnel, including dependents and civilian employees, recorded during the period from 1 January 1961 through December 1981.

8.  There is no entry in item 41 (Awards and Decorations) of the DA Form 20 showing he was awarded the Purple Heart.

9.  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 the Purple Heart to the applicant.
10.  The Standard Form 600 the applicant submitted shows he was seen at the battalion aid station on 4 December 1967 for pain in the left leg he had experienced since September.  The form that an x-ray taken of his left leg revealed a small fragment in the lateral aspects of the left thigh.

11.  The Standard Form 519A, dated 4 December 1967, has an entry in the Radiograph Report section of the form that says the x-ray revealed a small fragment on lateral side.

12.  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 that the applicant 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 indicates that he was wounded and sees no reason why he shouldn't be awarded the Purple Heart.  The evidence shows that even if he was wounded, he delayed receiving treatment from sometime in September to 4 December 1967.  In his request for award of the Purple Heart, he did not describe the circumstances which led to his being hit by the fragment [wounded].

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 which has the names of deceased, wounded, or ill or injured Army personnel.

4.  The applicant stated in his request that the evidence of his having been wounded was contained in the documents he submitted; however, these document only state the x-ray that was taken showed a small fragment in the lateral aspects of his left leg.  The reports do not attribute his being wounded to enemy or hostile action.

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)                                         AR20090001543



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090001543



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1