DOCKET NUMBER:  AR20090003770 


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, that he be awarded the Purple Heart and that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be amended to include the award of the Purple Heart.

2.  The applicant states that during the Vietnam War, he was wounded while he was in combat and that he received treatment by a medical officer after he was wounded.  He states that Executive Order 9277 states that the Purple Heart is to be awarded to persons who are wounded in action against an enemy of the United States, or as a result of an act of such enemy, provided such would necessitate treatment by a medical officer.  He states that although he should have been, he was never awarded the Purple Heart.

3.  The applicant provides in support of his application, a copy of his DD Form 214; copies of Individual Sick Slips dated 28 May 1972 and 30 May 1972; a copy of his Honorable Discharge Certificate from the United States Army Reserve (USAR); a copy of his Honorable Discharge Certificate from the New Jersey Army National Guard (NJARNG); a copy of his Military Pay Voucher for the pay period 1 April 1972 through 14 April 1972; and a copy of his Department of Veterans Affairs (DVA), Board of Veterans’ Appeals decision and notification of the decision that was made in his case.





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.  On 28 October 1970, the applicant enlisted in the Regular Army (RA) in Newark, New Jersey, for 3 years, in the pay grade of E-1.  He successfully completed his training as an engineer equipment repairman.  He was promoted through the ranks to the pay grade of E-4 and he was serving in the pay grade of E-4 when he arrived in Vietnam on 28 July 1971.  

3.  A review of the available records does not show that the applicant, while he was in Vietnam, was wounded as a result of hostile action and that the wound required treatment by medical personnel.

4.  The applicant was transferred from Vietnam on 13 April 1972 and he returned to the Continental United States.

5.  On 14 April 1972, the applicant was honorably released from active duty (REFRAD) under the provisions of Army Regulation 635-200, for the convenience of the government, due to being separated early to join his USAR unit.

6.  The DD Form 214 that he was furnished at the time of his REFRAD shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal and the Republic of Vietnam Campaign Medal w/Device 1960.

7.  The applicant was honorably discharged from the USAR on 27 April 1972 for the purpose of enlisting in the NJARNG.  Accordingly, on 28 April 1972, the applicant enlisted in the NJARNG for 2 years.  




8.  The Individual Sick Slips that the applicant has submitted in support of his application shows that on 28 May 1972 he had shrapnel removed from his right knee cap.  The medical officer indicated that he was to perform no duty and to return for a follow-up on 30 May 1972.  On 30 May 1972 the applicant returned for his follow-up appointment and the medical officer directed that he continue to perform no duties and to be assigned to his quarters.  The Individual Sick Slip dated 30 May 1972 indicates that his injury was incurred in the line of duty. 

9.  On 15 October 1972, he extended his 2-year period of enlistment in the NJARNG to 2 years and 6 months and on 20 March 1974, he was honorably discharged from the NJARNG, upon completion of his Reserve obligation.

10.  In a notification dated 22 December 1998, the applicant was informed of the decision made in his appeal to the DVA Board of Veteran’s Appeals.  In his appeal to the DVA the applicant stated that while he was stationed in Vietnam, he was hit with a grenade and sustained shrapnel wounds to his right knee, the side of his face and his left hand.  He explained during a hearing testimony in November 2008 that his original designated military occupational specialty (MOS) was an engineer heavy equipment repairman, although he was later transferred to the 19th Maintenance Light Trucks Direct Support Unit.  He stated that in this capacity, he provided an armed escort for military supply vehicle convoys.  He stated that during a supply operation in early April 1970, while he was located next to a 2 1/2 ton heavy truck, a grenade that was thrown by an enemy Soldier detonated near him and hit areas on his left hand, right knee and face.  He stated that he did not immediately seek medical treatment because he was scheduled to return to a National Guard unit in the United States the next month where he could seek assistance at a military facility.  He stated that he did not know the extent of his injuries involving shrapnel fragments.  The DVA determined that the applicant was entitled to service connection for his claim of post-traumatic stress disorder.

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained 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 and that his DD Form 214 should be amended accordingly.

2.  His contentions have been noted.  However, they are not substantiated by the evidence of record.

3.  While his record does show that he had shrapnel removed from his right knee on 28 May 1972, his record does not show that the shrapnel wound that he received was the result of hostile action by enemy forces.

4.  Additionally, during his DVA testimony, he stated that in early April 1970, while he was located next to a 2 1/2 ton heavy truck, a grenade that was thrown by an enemy Soldier detonated near him and hit areas on his left hand, right knee and face.  The applicant did not arrive in until 28 July 1971 and therefore, his injury could not have occurred in April 1970.  

5.  There is no medical documentation contained in the available records that shows that he was wounded as a result of hostile action by enemy forces.  Therefore, his contention that he is entitled to the award of the Purple Heart cannot be substantiated.  The statement that he made to the DVA in a hearing in November 2008 in not sufficiently mitigating to warrant the relief requested.

6.  In order to justify correction of a military record the applicant must show 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.

7. In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090003770



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ABCMR Record of Proceedings (cont)                                         AR20090003770



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