IN THE CASE OF:	  

		BOARD DATE:	         23 July 2009  

		DOCKET NUMBER:  AR20090003714 


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, the he was injured in the Republic of Vietnam (RVN) while on a combat mission and was medically evacuated.  However, this is not documented on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

3.  The applicant provides his DD Form 214 and a health summary, dated 
19 January 2007, 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 he was inducted into the Army of the United States and entered active duty on 14 January 1969.  He was awarded, held and served in military occupational specialty (MOS) 13B (Field Artillery Crewman).   

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 10 June 1969 through 9 June 1970.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Battery B, 3rd Battalion, 6th Artillery from 20 June 1969 through 27 February 1970; and to Battery C, 7th Battalion, 13th Artillery from 1 March through 8 June 1970.  

4.  Item 40 (Wounds) of the applicant's DA Form 20 is blank and Item 41 (Awards and Decorations) does not include the PH in the awards listed.  His record is void of any orders or other documents that show he was ever recommended for or awarded the PH by proper authority, or of any medical treatment records that show he was treated for a combat related wound by military medical personnel.

5.  On 13 January 1971, the applicant was honorably released from active duty (REFRAD), in the rank of specialist four, after completing 2 years of active military service.  The DD Form 214 he was issued on the date of his REFRAD shows he earned the following awards during his active duty tenure:  National Defense Service Medal, Vietnam Service Medal, Marksman Marksmanship Qualification Badge with Rifle Bar, 2 Overseas Service Bars, and the RVN Campaign Medal with 60 Device.  The PH is not included in the list of awards contained on the DD Form 214.  

6.  The applicant provides a health summary, dated 19 January 2007, which contains a note indicating the applicant's record showed an injury to his left great toe, on 27 October 1969, which was the result of ammunition being dropped on his toe.  This document provides no indication that the applicant's record showed this toe injury was received as a result of enemy action, or that the applicant actually ever claimed it was combat related.  

7.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  No entry pertaining to the applicant was found on this list of RVN casualties.  

8.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH.  It states, in pertinent part, that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action; that the wound required treatment by military medical personnel; and a record of this medical treatment must have been made a matter of official record.  
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is eligible for award of the PH because he was injured during a combat mission in the RVN was carefully considered.  However, by regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action; that the wound required treatment by military medical personnel; and a record of this medical treatment must have been made a matter of official record. 

2.  Although the applicant provides a health summary, dated 19 January 2007, which indicates his record showed he sustained an injury to his left great toe, on 27 October 1969, when ammunition was dropped on his toe, this document provides no indication that this injury was received as a result of enemy action, or that the applicant ever claimed it was.  Further, item 40 of his DA Form 20 is blank, which indicates he was never wounded in action.  His record is also void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty, and it contains no medical treatment records that indicate he was ever treated for a combat-related wound while serving in the RVN.  

3.  Finally, the applicant's name is not included on the Vietnam Casualty Roster, the official list of RVN battle casualties.  Absent any evidence of record confirming the applicant was wounded in action or treated for a combat-related wound while serving in the RVN, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Therefore, it would not be appropriate to award the applicant the PH.

4.  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.   

5.  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)                                         AR20090003714



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ABCMR Record of Proceedings (cont)                                         AR20090003714



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