IN THE CASE OF:	  

		BOARD DATE:	       4 JUNE 2009

		DOCKET NUMBER:  AR20090002978 


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 correction of his DD Form 214 (Report of Separation from Active Duty) to show his second award of the Army Commendation Medal and correction of his official military record to include the award of the Purple Heart.

2.  The applicant states that he was badly burned when he was fighting a fire that was directly threatening to destroy the “POL” dump at Camp Eagle.  He states that the fire was caused by incoming rounds just behind the perimeter bunker.  He states that subsequently, as another incoming round exploded very close to him, he was thrown into the oil fire and badly burned his left leg, arm and hand.  He states that his commanding officer refused his request to be awarded the Purple Heart.  He states that he was told that he had not been shot directly by the enemy.  He concludes by stating that his injuries were not an accident; were not self inflicted; and were the direct result of incoming enemy fire.  The applicant states that he did receive medical treatment for his injuries.

3.  The applicant provides a letter from an individual who identifies himself as his brother, addressed to the "Veterans Administration" (VA), dated 24 November 2008.

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.  On 3 October 1966, the applicant enlisted in the Regular Army (RA) in Los Angeles, California, for 3 years, in the pay grade of E-1.  He successfully completed his training as a light vehicle driver.

3.  After completing 1 year, 1 month and 25 days of total active service this period, the applicant was honorably discharged on 27 November 1967 under the provision of Army Regulation 635-205, for the purpose of immediate reenlistment.  The DD Form 214 that he was furnished at the time of his discharge shows that he was awarded the National Defense Service Medal.

4.  The applicant reenlisted in the RA for 3 years on 28 November 1967 and the available records show that he arrived in Vietnam on 1 March 1968.  He departed Vietnam on 4 October 1969 and he returned to the Continental United States.

5.  General Orders Number 843 were published on 6 October 1969 awarding him the Army Commendation Medal for meritorious service from February 1968 through October 1969.

6.  On 27 August 1970 the applicant was honorably released from active duty (REFRAD) for the purpose of entering or returning to a college, university or equivalent educational institution.  He had completed 3 years, 10 months and 25 days of total active service and he was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).

7.  The DD Form 214 that he was furnished at the time of his REFRAD shows that he was awarded the Army Commendation Medal, the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, and the Marksman Marksmanship Qualification Badge with Rifle Bar.

8.  A review of the applicant’s records does not show that he was treated for wounds/injuries that he sustained as a result of hostile action by enemy forces while he was in Vietnam. 


9.  The applicant's name does not appear on the Vietnam Casualty Reference Name Listing showing that he was wounded in action when he was in Vietnam.

10.  The applicant again enlisted in the RA for 4 years on 12 April 1971, and he arrived in Germany on 20 April 1971.  He departed Germany on 4 April 1974 and he returned to the Continental United States.  

11.  On 9 May 1974, General Orders Number 39 were published awarding the applicant the Army Commendation (First Oak Leaf Cluster) for meritorious service from 12 April 1972 through 5 April 1974.

12.  The applicant was honorably discharged on 18 April 1975 at the expiration of his term of service.  He had completed 7 years, 10 months and 25 days of total active service.  

13.  The DD Form 214 that he was furnished at the time of his discharge shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal with seven bronze service stars, the Republic of Vietnam Campaign Medal with Device 1960, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Army Commendation Medal, three Overseas Service Bars, two Service Stripes, the Army Commendation Medal (First Oak Leaf Cluster), and the Good Conduct Medal (Third Award).

14.  The letter that the applicant submitted in support of his application is dated 24 November 2008, and it is signed by an individual who identifies himself as his brother.  His brother states that when he was a member of the United States Navy, he deployed in Vietnam from November 1968 through October 1969.  He states that in March 1969, he was given permission to see his brother and that when he arrived at Camp Eagle, he found that the applicant had sustained severe second and third degree burns on the palm and fingers of his left hand and on his right kneecap and upper shin as a result of fighting a fire that was threatening a fuel dump, following some incoming rounds.  His brother states that since the applicant had not received any follow-up medical treatment and his burns were beginning to become infected, he removed a poorly applied, dirty field dressing from his hand, cleaned and treated the burns, and properly 
re-bandaged his hand.  He states that he later did the same for the burns on the applicant's legs.  

15.  In the letter dated 24 November 2008, the applicant’s brother states that the applicant was taken to the nearest Navy “stat-team” for further evaluation and treatment.  He states that despite the painful injuries, the applicant was actively in charge of a squad, manning a forward artillery observation post when he left to return to his own unit.  He states that the applicant's records will also show that he contracted a form of recurrent malaria while he was “in country” and that he was treated at a medical evacuation hospital.  He states that the applicant was also exposed to jungle defoliant and Agent Orange while he was in Vietnam.

16.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound/injury 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.

17.  Army Regulation 600-8-22 (Military Awards) states, in pertinent part, that the first oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Army Commendation Medal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show his second award of the Army Commendation Medal and that his official military records should be corrected to include the award of the Purple Heart.

2.  The applicant’s contentions have been noted and the letter that he submits in support of his applicant has been considered.  However, there is no evidence in the available record that shows that the applicant sustained a wound/injury as a result of hostile action enemy forces and that he received medical treatment by medical personnel as a result of his wounds/injuries.  Therefore, he does not meet the criteria contained in the applicant regulation for award of the Purple Heart.  Regrettably, without corroborating evidence, the letter from his brother is insufficient as a basis upon which to award the Purple Heart.

3.  In regard to the applicant’s request that his DD Form 214 be amended to show his second award of the Army Commendation Medal, his DD Form 214 currently reflects his second award of the Army Commendation.  His records show that on 9 May 1974 General Orders Number 39 were published awarding him the Army Commendation Medal (First Oak Leaf Cluster) which was his second award of the Army Commendation Medal.  This information was properly included on his DD Form 214 dated 18 April 1975.

4.  In order to justify correction of a military record the applicant must show 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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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.




      _______ _   xxx_______   ___
               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)                                         AR20090002978



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ABCMR Record of Proceedings (cont)                                         AR20090002978



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