IN THE CASE OF:	  .

		BOARD DATE:	       4 AUGUST 2009

		DOCKET NUMBER:  AR20090003593 


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 three awards of the Purple Heart instead of two.

2.  The applicant states that his DD Form 214 contains incorrect information. 

3.  The applicant provides a copy of his DD Form 214, dated 23 March 1973, and a copy of General Orders Number 107, issued by Headquarters, 3rd Surgical Hospital, on 8 September 1971, showing award of the Purple Heart (3rd Award), 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.  With prior enlisted service, the applicant’s records show he was appointed as a Reserve commissioned officer of the Army in the rank of second lieutenant on 15 February 1968 and entered active duty on 14 April 1968.  He completed the Infantry Officer Basic Course and was promoted through the ranks to captain (CPT) on 14 April 1970.  He was honorably retired on 23 March 1973 by reason of physical disability.  

3.  The applicant’s records show he served in the Republic of Vietnam from on or about 6 May 1969 to on or about 2 July 1969 and from on or about 10 April 1971 to on or about 31 October 1971.  He was assigned to the U.S. Military Assistance Command Vietnam (MACV).

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 Vietnam Service Medal with four bronze service stars, the Purple Heart (1st Oak Leaf Cluster), the Combat Infantryman Badge, the Republic of Vietnam Campaign Medal with Device (1960), the Bronze Star Medal, the Parachutist Badge, the Armed Forces Expeditionary Medal, and one overseas service bar.

5.  Headquarters, 71st Evacuation Hospital, General Orders Number 141, dated 7 June 1969, show the applicant was awarded the Purple Heart (1st Award) for wounds received in action on 6 June 1969.

6.  Headquarters, 3rd Surgical Hospital, General Orders Number 107, dated 8 September 1971, show the applicant was awarded the Purple Heart (3rd Award) for wounds received in action on 29 September 1971.

7.  Headquarters, Fort Leonard Wood Medical Department Activity, Fort Leonard Wood, MO, General Orders Number 61, dated 24 August 1972, show the applicant was awarded the Purple Heart for wounds received in action on 29 September 1971.

8.  Headquarters, Fort Leonard Wood Medical Department Activity, Fort Leonard Wood, MO, General Orders Number 80, dated on an unknown date, amended General Orders Number 61, dated 24 August 1972, to show the applicant was awarded the Purple Heart (1st Oak Leaf Cluster).

9.  The applicant's name is shown once on the Vietnam Casualty Roster under code 23, indicating he was wounded as a result of hostile action.  The date of injury/wound is listed as 6 June 1969.

10.  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 his DD Form 14 should be corrected to show three awards of the Purple Heart. 

2.  The evidence of record shows that the applicant was wounded as a result of hostile action in the Republic of Vietnam on 6 June 1969 and was accordingly awarded his first award of the Purple Heart.

3.  The evidence of record also shows that the applicant suffered a second wound/injury in the Republic of Vietnam on 29 September 1971 and was awarded his second award of the Purple Heart.  However, the general orders that announced his award of the Purple Heart for this injury erroneously listed it as his third award.  

4.  The evidence of record further shows that upon his arrival at Fort Leonard Wood, he was issued a second order awarding him the Purple Heart for the same injury that occurred on 29 September 1971 and that this order was later amended to show this award of the Purple Heart as his second award.

5.  There is no evidence in the applicant’s records and the applicant did not provide sufficient evidence that shows he was wounded or injured a third time as a result of hostile action or treated for such wounds.  In the absence of documentation that shows he suffered a third wound/injury as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base a third 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)                                         AR20090003593



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ABCMR Record of Proceedings (cont)                                         AR20090003593



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