IN THE CASE OF:	  

		BOARD DATE: 	        28 May 2009

		DOCKET NUMBER:  AR20090002864 


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 that while serving with the 1st Battalion, 61st Infantry of the 5th Infantry Division in Vietnam he suffered wounds to his ears (ruptured eardrums) during an attack in which his armored personnel carrier (APC) was struck by an enemy rocket propelled grenade (RPG).  He contends that at first everyone thought he had been killed and they left him behind but he finally got out of the APC and sought cover in a bomb crater.  He claims that he received treatment at a base camp, that he removed a piece of shrapnel from his cheek, and that he returned to duty after declining his commanding officer's offer to be evacuated.  He further states that he never received the Purple Heart for his injuries. 

3.  The applicant provides four statements from fellow Soldiers and two photographs depicting burning military vehicles 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 was inducted into the Army of the United States on 15 August 1968.  He served in military occupational specialty (MOS) 11B (light weapons infantryman) in Vietnam from 17 January 1969 to 3 February 1970 and he was released from active duty on 14 August 1970.   

3.  The applicant’s DD Form 214 does not show the Purple Heart as an authorized award.   

4.  There is no evidence in the available records which show that the applicant was awarded the Purple Heart or 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 an undated statement from a fellow Soldier at the time in question.  He attests that he was a member of Company A, 1st Battalion, 61st Infantry, 5th Infantry Division and that on 
27 April 1969 their company came under attack and the applicant's APC was hit three times by RPGs.  After the first RPG hit the applicant's APC, the applicant was knocked out and the gunner thought the applicant was dead and he fled.  The applicant woke up and looked out the top hatch and saw the enemy aiming a second RPG at the track.  The applicant threw a grenade at the enemy and at the same time the enemy fired the RPG hitting the APC, knocking the applicant out again.  He states a third RPG hit the applicant's APC.  He further states the next morning he found the applicant still semi-conscious; that the applicant should have been looked at but he was not; that the applicant should have been evacuated; and that the applicant was messed up with nose bleeds, headaches, and he could not hear well.     

7.  The applicant provided a statement, dated 21 December 2008, from his first sergeant at the time in question.  He attests that on 27 April 1969 the applicant was on an APC that was blown up by an RPG, that his ears were perforated but 
he was not evacuated, that the applicant spent time in the rear for his ears to heal, and that he should have received the Purple Heart but his paperwork was lost.   

8.  In another statement, dated 2 December 2008, a fellow Soldier attests that on 27 April 1969 the applicant's APC was hit and destroyed by an RPG, that the applicant was knocked unconscious for an undetermined amount of time and because of the seriousness of the firefight he was left unattended until he regained consciousness, and that it was then he discovered he had been hit and wounded by shrapnel. 

9.  A statement, dated 5 January 2009, from a fellow Soldier states that approximately four hours before daylight on the morning of 28 April 1969 an estimated reinforced company of North Vietnamese Army Regulars initiated a fierce mortar, RPG, and small arms attack upon Company A's night perimeter and shortly thereafter began a ground assault upon their company line of defense, utilizing portable flame throwers, satchel charges, and grenade attacks.  He attests that during the attack he was wounded and spent several weeks in the hospital.  He does recall the applicant was the APC operator and that he is sure the applicant was overlooked for the Purple Heart.    

10.  The applicant's service personnel records contain orders for the Bronze Star Medal for heroism on 28 April 1969 in Vietnam.  The citation states, in pertinent part, that "Approximately four hours before daylight, on the morning of 28 April 1969, an estimated reinforced company of North Vietnamese Army Regulars initiated a fierce mortar, rocket-propelled grenade and small arms attack upon the western edge of Company A's night perimeter, and shortly thereafter, began a ground assault upon the mechanized company's line of defense, utilizing portable flame throwers, satchel charges and hand grenades."  and "With complete disregard for his personal safety, he, exposing himself to dangerous enemy fire, laid down a heavy base of defensive fire with his M-16 automatic weapon until it was shot from his hands by enemy small arms fire.  Specialist [the applicant's last name] then began throwing hand grenades at the on-coming NVA [North Vietnamese Army] force, effectively hampering their assault.  When the assaulting enemy forces came within range of the Claymore Mines, Specialist [the applicant's last name] set them off in such a skillful manner that the enemy assault was stopped.  This citation does not show that the applicant was wounded as a result of hostile action during this heroic action.      




11.  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:

There is no evidence of record which shows that the applicant was wounded as a result of hostile action in Vietnam.  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 statements provided by the applicant are not sufficient as a basis for award of the Purple Heart.  Even the applicant's former first sergeant only stated that the applicant spent time in the rear for his ears to heal, but he did not state he received any medical treatment for injuries.  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)                                         AR20090002864



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ABCMR Record of Proceedings (cont)                                         AR20090002864



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