DOCKET NUMBER:  AR20090002151 


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 (PH) for wounds received. 

2.  The applicant states, in effect, that B Company was on a search and destroy mission.  His company was ambushed and he was wounded.

3.  The applicant provides a copy of a Standard Form (SF) 600 (Chronological Record of Medical Care) and continuation sheet, a DA Form 2658 (Health Record – Abstract of Service), and 8 pages of a Duty Staff Journal for 2nd Battalion (Mechanized), 22nd Infantry (Vietnam), dated 12 September 1970, 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 inducted into the Army of the United States and entered active duty on 18 February 1969.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank/grade he attained was specialist four (SP4)/pay grade E-4.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he 
served in the Republic of Vietnam from 23 November 1969 through 30 October 1970.  Item 38 (Record of Assignments) of this document shows, in pertinent part, that he was assigned to Company B, 2nd Battalion, 22d Infantry, 25th Infantry Division, Vietnam.  Item 40 (Wounds) of the applicant's DA Form 20 is blank.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not show the award of the PH.
 
4.  The applicant's Official Military Personnel File (OMPF) is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty.  The OMPF also does not contain any medical treatment records that indicate he was ever treated for a combat-related wound or injury while serving in Vietnam. 

5.  On 5 November 1970, the applicant was honorably released from active duty after completing a total of 1 year, 8 months, and 18 day of active military service and transferred to the U.S. Army Reserve (USAR) Control Group (Annual 
Training) to complete his remaining Reserve obligation.  The PH is not shown on his DD Form 214.

6.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  There was no entry pertaining to the applicant on this list of Vietnam casualties. 

7.  On 12 June and 19 September 2007, the Military Awards Branch, U.S. Army Human Resources Command (USAHRC), Alexandria, VA, denied the applicant's request for award of the PH.  The USAHRC official stated the reason for the denial was that there was not enough medical evidence to show that the injury he received in September 1970 was the result of enemy action; that the injuries received were made a matter of official record, and the applicant's name was not on the Vietnam Casualty Roster.   

8.  On 30 December 2008, the applicant submitted, as evidence in support of his application, 3 pages of health record documents and a copy of his unit's Duty Staff Journal for 12 September 1970.  The medical documents do not show that the injury he received was as a result of hostile action.  Although the Staff Duty Journal describes the ambush incident referenced by the applicant, no individuals are listed by name in the journal as being wounded as a result of the incident.

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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 and the evidence submitted with his application were carefully considered.  However, by regulation, in order to be awarded the PH, substantiating evidence must be presented to show that the Soldier 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's military record is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty.  It also contains no medical treatment records that indicate he was ever treated for a combat-related wound while serving in the Vietnam.  

3.  Further, the applicant's name is not included on the Vietnam Casualty Roster, the official DA list of Vietnam battle casualties.  Absent any evidence of record confirming the applicant was wounded in action or treated for a combat-related wound while serving in Vietnam, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  

4.  In regard to the medical documents submitted by the applicant in support of his application, none of the documents show that the injury he received was as a result of hostile action.

5.  Additionally, although the Staff Duty Journal describes the ambush incident referenced by the applicant, no individuals are listed by name in the journal as being wounded as a result of the incident.

6.  Regrettably, in view of the foregoing there is no basis for granting the applicant's requested relief.


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)                                         AR20090002151



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ABCMR Record of Proceedings (cont)                                         AR20090002151



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