BOARD DATE:	  21 July 2009

		DOCKET NUMBER:  AR20090003706 


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 records to show award of the Purple Heart.

2.  The applicant states, in effect, while serving in the Republic of Vietnam (RVN) in July 1969 his base camp was rocketed with mortars.  He also states that in trying to escape the attack he jumped into a bunker and, at that time, he was hit in his right knee with small pieces of hot shrapnel and he also injured his right knee.  The applicant adds that the shrapnel was removed from his knee, the wounds treated, and his knee was bandaged.  The applicant further states that he is currently rated at 100 percent unemployable, so financially this will not help him.  He adds that he now has three grandchildren and he would be very proud to leave them the Purple Heart, along with his other military decorations.

3.  The applicant provides, in support of his application, copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 10 January 1970; DD Form 256A (Honorable Discharge Certificate), dated 1 May 1973; seven photographs; a letter written by William H______, dated 9 November 1970; and two pages of VISTA Electronic Medical Documentation, printed on 1 February 2007.

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 enlisted in the U.S. Army for a period of 3 years and entered active duty on 26 May 1967.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 71H (Personnel Specialist).

3.  The applicant's military personnel records contain a DA Form 20 (Enlisted Qualification Record) prepared on 30 December 1967 and reviewed by the applicant on 11 January 1970.

   a.  Item 31 (Foreign Service), in pertinent part, shows he served in the U.S. Army Pacific (USARPAC) in the RVN from 12 January 1969 through 11 January 1970.

   b  Item 38 (Record of Assignments), in pertinent part, shows he was assigned to the 101st Administration Company, 101st Airborne Division (Airmobile) (USARPAC, RVN), with duty as a Personnel Specialist in the Personnel Management Branch from 12 February 1969 through 6 January 1970.
   
   c.  Item 40 (Wounds) is blank.
   
   d.  Item 41 (Awards and Decorations) fails to show he was authorized award of the Purple Heart.

4.  A Standard Form (SF) 89 (Report of Medical History), dated 10 January 1970, that the applicant completed during his separation medical examination, shows in Item 17 (Statement of Examinee’s Present Health in Own Words) the applicant entered "I AM IN GOOD HEALTH."  In response to Item 20 (Have You Ever Had or Have You Now), in pertinent part, " 'Trick' or Locked Knee," the applicant placed a checkmark in the "No" column.  Item 33 (Have You Ever Had Any Illness or Injury Other Than Those Already Noted) shows the applicant placed a checkmark in the "No" column.  This document also shows the applicant and attending physician each placed their signature on the document.


5.  The applicant's DD Form 214 shows he entered active duty this period on
26 May 1967; he was honorably released from active duty on 10 January 1970, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 2, based on expiration term or service; and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining military service obligation.  At the time he had completed 2 years, 7 months, and 15 days of net active service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Bronze Star Medal, Army Commendation Medal, Good Conduct Medal, National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Meritorious Unit Commendation, and Expert Marksmanship Qualification Badge with (M-14) Rifle Bar.

6.  There is no documentation in the applicant’s military personnel records that shows he was wounded or treated for wounds as a result of hostile action.  In addition, a review of the Vietnam Casualty Roster confirmed that the applicant’s name is not listed on the roster.

7.  A review of the applicant’s military personnel records revealed that there are no orders in the applicant’s records that show he was awarded the Purple Heart.

8.  A search of the U.S. Army Human Resources Command, Awards and Decorations Computer Assisted Retrieval System for the Vietnam Conflict failed to produce orders showing the applicant was awarded the Purple Heart.

9.  In support of his application, the applicant provides the following documents.

   a.  A DD Form 214 with an effective date of 10 January 1970 that was previously introduced and considered in this Record of Proceedings.

   b.  A DD Form 256A, dated 1 May 1973, that shows the applicant was honorably discharged from the USAR and U.S. Army on 1 May 1973.

   c.  Seven photographs that appear to have been taken in the RVN and show, in pertinent part, a mortar round that landed within the compound and what appear to be holes in one of the building’s walls.

   d.  A letter written by William H______, dated 9 November 1970, in which, in pertinent part, the author states he served in the RVN with the applicant from
late June 1969 to early January 1970.  He also states that he was with the applicant during a rocket attack in July 1969 and remembers him injuring his knee while jumping into a bunker to escape injury from hostile actions.
   e.  Two pages of VISTA Electronic Medical Documentation, printed on
1 February 2007, that, in pertinent part, show the medical official documented the that applicant stated, "He said the worst ground attack was during Tet of 1969 at Bien Hoa, however.  'They were everywhere.'  The [applicant] apparently was brand new to Vietnam at that time.  He says he was wounded when he hurt his right knee at Bien Hoa while under a mortar attack there.  'I blew it out while jumping into a fox hole.'"

10.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  This Army regulation, in pertinent part, states that the Purple Heart is awarded for a wound sustained as a result of hostile action.  It provides that 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 records should be corrected to show award of the Purple Heart because he sustained shrapnel wounds in his right knee and also injured his right knee in the RVN in July 1969 when his base camp was rocketed with mortars and he jumped into a bunker to escape injury.  He also contends that he received treatment for his wounds and injuries.

2.  There is no evidence in the applicant’s military personnel records that shows he was wounded as a result of hostile action; his DA Form 20 does not list the Purple Heart in item 41; the applicant's name is not listed on the Vietnam Casualty Roster; and there are no orders in the applicant’s military personnel records or in the U.S. Army Human Resources Command Awards and Decorations Computer Assisted Retrieval System that show the applicant was awarded the Purple Heart.  In addition, there is no evidence in the applicant’s military service records that shows he was wounded as a result of hostile action, that such wound required treatment, or that the medical treatment was made a matter of official record.

3.  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.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action 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.




      _______ _   __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)                                         AR20090003706



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090003706



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1