IN THE CASE OF:	

		BOARD DATE:	       21 JULY 2009

		DOCKET NUMBER:  AR20090003437 


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 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Purple Heart.

2.  The applicant states that he received fragment wounds to his chest as a result of enemy action on 28 February 1970 in the Republic of Vietnam and was given the Purple Heart; however, there is no record of it on his DD Form 214.

3.  The applicant provides a copy of his DD Form 214, dated 28 January 1971, and a copy of his Standard Form 600 (Chronological Record of Medical Care), dated on various dates throughout his service, in support of his request.

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 records show he was inducted into the Army of the United States on 29 January 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was honorably released from active duty in the rank/grade of sergeant/E-5 on 28 January 1971 and transferred to the U.S. Army Reserve Control Group (Annual Training) for completion of his Reserve obligation.

3.  The applicant’s records show he served in the Republic of Vietnam from on or about 27 June 1969 to on or about 26 June 1970.  He was assigned to Company B, 1st Battalion, 12th Cavalry, 1st Cavalry Division.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 shows he was awarded the National Defense Service Medal, the Combat Infantryman Badge, the Air Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Army Commendation Medal (1st Oak Leaf Cluster) and "V" Device, the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14).  Item 24 does not show award of the Purple Heart.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows a blank entry.

6.  The applicant's name is not shown on the Vietnam casualty roster.

7.  There are no general orders in his records that show he was awarded the Purple Heart.

8.  During the processing of this case, a member of the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System maintained by the Military Awards Branch of the United States Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any Purple Heart orders on file for the applicant.

9.  The applicant submitted a copy of his Standard Form 600, dated on miscellaneous dates throughout his military service.  This form contains an entry dated 4 March 1970 that shows he received a fragment wound to his chest on 28 February 1970 due to hostile action and that he was treated in the field.  It further states, "Carded today for record."  The applicant’s complete medical records are not available for review with this case.

10.  The applicant's available medical records show he underwent a separation physical examination on 14 October 1970.  On his Standard Form 89 (Report of Medical History), he stated he underwent an operation on his right side at age 22 in Vietnam.  The doctor reviewing this form added the word "appendectomy" in parentheses.

11.  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 contends that he should be awarded the Purple Heart.

2.  The applicant’s name is not shown on the Vietnam casualty roster; his DA Form 20 does not indicate any combat wounds, his record is void of any orders that show he was awarded the Purple Heart, and his available medical records do not indicate he was wounded and/or injured as a result of hostile action.

3.  The single page of the Standard Form 600 with the 4 March 1970 entry is wholly uncorroborated by any of the standard sources for proof of entitlement to the Purple Heart.  Furthermore, on his separation Standard Form 89 he omitted mention of a fragmentation wound, only saying that he had an appendectomy in Vietnam.

4.  Notwithstanding the medical document submitted by the applicant, in the absence of additional documentation that conclusively shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon 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.



      _________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)                                         AR20090003437



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ABCMR Record of Proceedings (cont)                                         AR20090003437



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