IN THE CASE OF:	  

		BOARD DATE:	       12 May 2009

		DOCKET NUMBER:  AR20090002073 


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 that he be awarded the Purple Heart.

2.  The applicant states that he was wounded several times in Vietnam and was treated in the field.

3.  The applicant provides copies of letters from his wife and two fellow Soldiers and eight pages from his service medical record.

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 service medical and dental records are believed to be on permanent loan to the Department of Veterans Affairs and are not available for review.  The only available medical records are those provided by the applicant.
3.  The applicant was inducted into the Army of the United States and entered active duty on 15 June 1967.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

4.  The applicant is shown to have served in Vietnam with Company B, 3rd Battalion, 12th Infantry Regiment, from 9 January 1968 through 15 January 1969.

5.  The applicant's 15 January 1969 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) lists his awards as the Army Commendation Medal, the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, the Combat Infantryman Badge, and the Marksman Marksmanship Qualification Badge with Rifle Bars 
(M-14 and M-16).

6.  Block 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) is blank.

7.  In a letter of support for the applicant, O. C. E____ states that in the summer of 1968 he was present when a platoon sergeant accidently discharged his rifle and the bullet struck the helmet on which the applicant was sitting causing shrapnel to lodge in his buttock.  The shrapnel was removed by the company medic.

8.  In a letter of support for the applicant, R____ A. W____ states that he was the company medic serving with the applicant when the applicant received a small arms or shrapnel wound during a firefight.  The medic states he treated the applicant on site and the applicant returned to his position manning the M-60 machine gun.

9.  In a letter of support from the applicant's wife, she states that in August of 1968 while they were in Hawaii, the applicant was having problems sitting due to shrapnel in his buttock.  She recalls picking one piece of metal out herself and that others worked their way out over the next year.

10.  The available service medical records show complaints of and treatment for possible neurosensory hearing loss and tinnitus.  The applicant reported that in February of 1968 he started experiencing problems "when many rounds of M-16 were fired next to him."

11.  The available service medical records do not show any complaints of or treatment for any shrapnel wounds and the applicant's separation medical examination lists no complaints of or findings of any residuals of any injury.
12.  A review of the Vietnam casualty list failed to locate any reference for the applicant.

13.  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 any awards or decorations.

14.  Army Regulation 600-8-22 (Military Awards), paragraph 2-8, provides that the Purple Heart is awarded to an individual who is wounded in any action against an enemy of the United States, in any action with an opposing armed force of a foreign country in which the armed forces of the United States are or have been engaged, while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party, as the result of any act of any such enemy of opposing armed forces, or as a result of an act of any hostile foreign force.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was wounded several times in Vietnam and was treated in the field.

2.  The statements of individuals are inadequate as the sole basis for an award of the Purple Heart because they do not fulfill the regulatory requirement that there be a record of medical treatment.  However, they are normally accepted as substantiation of the combat or the enemy origin of a wound for which there is a record of treatment.

3.  The letters of support provided by the applicant are either contradictory as to the cause of the alleged wound to the applicant's buttock or describe two different incidents.  One describes it as occurring in action against the enemy and the other as an accidental wounding which does not qualify for entitlement to the Purple Heart.

4.  The available medical records showing treatment for neurosensory hearing loss and tinnitus do not identify the location or circumstances surrounding the onset of the applicant's tinnitus and neurosensory hearing loss.

5.  The record contains insufficient documentation to support the applicant's contention that he received a wound as the result of hostile action.  Without a record of treatment for a wound sustained as the result of enemy action, entitlement to the Purple Heart cannot be established.

6.  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.

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)                                         AR20090002073



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ABCMR Record of Proceedings (cont)                                         AR20090002073



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