IN THE CASE OF:
BOARD DATE: 19 May 2009
DOCKET NUMBER: AR20090002054
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 award of the Purple Heart.
2. The applicant states, in effect, that he received combat wounds to his leg and arm during the TET Counteroffensive campaign on 31 January 1968 and that he was hospitalized.
3. The applicant provides a Standard Form (SF) 502 (Clinical Record Narrative Summary), dated 8 March 1968; and page 6 of a Department of Veterans Affairs (DVA) Rating Decision 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was inducted into the Army of the United States and entered active duty on 22 September 1966. He served in military occupational specialty (MOS) 31M (radio relay and carrier attendant) in Vietnam from 27 March 1967 through 26 March 1968. He was subsequently released from active duty on
20 September 1968 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 applicants DD Form 214 (Report of Transfer or Discharge) does not show the Purple Heart as an authorized award.
4. There is no evidence in the available records which shows that the applicant was awarded the Purple Heart or that he was wounded as a result of hostile action in Vietnam.
5. The applicant's DA Form 20 (Enlisted Qualification Record) does not show entitlement to the Purple Heart and item 40 (Wounds) on his DA Form 20 is blank. The applicant's name does not appear on the Vietnam Casualty Roster.
6. In support of his claim, the applicant provided a clinical record, dated 8 March 1968, which shows he was treated for "infected wounds, left pre-tibial area." However, there is no evidence that these wounds were the result of hostile action.
7. The applicant also provided page 6 of a DVA Rating Decision which states, in pertinent part, that he was granted service-connection for scars, residuals of an injury to his left lower leg. This page states that in November 2006 the applicant reported that he injured his left leg during a jump from a tower in Vietnam after receiving incoming fire. This page also states that in February 2007 the applicant reported that he suffered a leg wound from falling 25 feet from a radio tower during the TET offensive, that he reported running down the radio tower as fast as he could cutting his leg in the process, that his wounds became infected, and that he was treated in a hospital and then went on convalescent leave.
8. 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. The applicant's contentions that he received combat wounds to his leg and arm during the TET Counteroffensive campaign on 31 January 1968 and that he was hospitalized were carefully considered.
2. There are no orders for the Purple Heart in the available records. Contemporaneous medical evidence of record shows the applicant was treated for infected wounds of his left leg in Vietnam more than a month after the incident. However, there is no evidence which shows these wounds were the result of hostile action in Vietnam. The DVA documentation provided by the applicant states that in 2006 he reported that he injured his left leg during a jump from a tower after receiving incoming fire. In the absence of orders or other evidence of record showing that the applicant was injured or treated for wounds as a result of hostile action in Vietnam, the documentation provided by the applicant is not sufficient as a basis for award of the Purple Heart. Regrettably, there is insufficient evidence on which to base award of the Purple Heart in this case.
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) AR20090002054
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ABCMR Record of Proceedings (cont) AR20090002054
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