IN THE CASE OF:	  

		BOARD DATE:	       21 July 2009

		DOCKET NUMBER:  AR20090003525 


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, in effect, award of the Purple Heart (PH).   

2.  The applicant states, in effect, that he was wounded while serving in the Republic of Vietnam (RVN), on 2 March 1970, just before he left country when a mortar landed inside the compound.  He states he was sent to the hospital and received stitches above his eye, chin and hand and that he still has the metal fragment that was lodged in the bone of his hand. 

3.  The applicant provides his DA Form 20 (Enlisted Qualification Record) 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 enlisted in the Regular Army and entered active duty on 12 October 1967.  He was trained in and awarded military occupational specialty (MOS) 63C (General Vehicle Repairman), and private first class (PFC) is the highest rank he attained while serving on active duty.  

3.  The applicant’s DA Form 20 shows he served in the RVN from 29 July 1968 through 17 May 1970.  Item 38 (Record of Assignments) shows that during his RVN tour he was assigned to Company A, 7th Engineer Battalion, 1st Brigade, performing duties in MOS 63B as a wheel vehicle mechanic, MOS 44C as a welder, and MOS 12A as a pioneer.   

4.  Item 40 (Wounds) of the applicant’s DA Form 20 contains an entry that indicates he received a laceration of his right eye on 2 March 1970.  

5.  The applicant’s Official Military Personnel File (OMPF) is void of orders or other documents that indicate he was ever recommended for or awarded the PH while serving in the RVN.  It is also void of any medical treatment records that show he was ever treated for a combat-related wound or injury while serving in the RVN.  

6.  On 17 May 1970, the applicant was honorably released from active duty (REFRAD) and transferred to the US Army Reserve Control Group.  He had completed 2 years, 7 months, and 6 days of active military service.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows that during his active duty tenure he earned the National Defense Service Medal, Expert Marksmanship Qualification Badge with Rifle (M-14 & M-16) Bars, 3 Overseas Service Bars, Vietnam Service Medal, RVN Campaign Medal, and RVN Gallantry Cross with Palm Unit Citation.  The PH is not included in the list of awards entered on his DD Form 214 and the applicant authenticated this document with his signature in item 32 (Signature of Person Being Transferred or Discharged) on the date of his REFRAD.    

7.  During the processing of this case, a staff member of the Board reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant’s name was not included on this list of RVN casualties.  

8.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-8 contains guidance on award of the PH.  It states, in pertinent part, in order to support award of the PH, there must be evidence confirming that the wound for which the award is being made was received as 
a result of enemy action, that it required treatment by medical personnel, and a record of this treatment must have been made a matter of official record.  
9.  Army Regulation 600-200, chapter 9 of the version in effect at the time, stated, in pertinent part, that a brief description of the wounds or injuries,(including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization would be entered in item 40 of the DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in item 40.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been awarded the PH because he was wounded in action in the RVN on 2 March 1970 was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  Although item 40 of the applicant’s DA Form 20 contains an entry indicating he suffered a laceration wound of the right eye on 2 March 1970, there are no medical treatment records or other documents on file that corroborate the information in this entry.  Further, given this entry, it is logical to conclude that had the injury qualified him for award of the PH his chain of command would have taken the necessary action to recommend, process, and approve the award.  However, the absence of the PH in item 41 of his DA Form 20 indicates this action was not taken by the chain of command and that the applicant did not pursue this matter in the nearly 3 months he continued to serve in the RVN subsequent to 2 March 1970.  

3.  in addition, the applicant’s name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  

4.  Notwithstanding the entry in Item 40 of his DA Form 20, absent any medical treatment records confirming the applicant was treated for his laceration wound by military medical personnel, or of any documents or orders that verify he was recommended for or awarded the PH by the proper authority, the regulatory burden of proof necessary to support award of the PH and/or to overcome the presumption of regularity attached to list of awards entered on his DD Form 214 has not been satisfied in this case.  

5.  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 related to award of the PH.   

6.  The applicant and all others concerned should know that this action related to award of the PH in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  

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)                                         AR20090003525



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090003525



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1