IN THE CASE OF:	  

		BOARD DATE:	  30 June 2009

		DOCKET NUMBER:  AR20090003778 


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 award of the Purple Heart with first oak leaf cluster.  

2.  The applicant states, in effect, that the Purple Heart with first oak leaf cluster should be shown on his DD Form 214 for wounds he received in combat in the Republic of Vietnam on 7 November 1968 and 19 February 1969.  He also states that medical evidence found at the Veterans Affairs Medical Center (VAMC) in Albuquerque, New Mexico, and in his 201 File supports his request.  He further states that, on 7 November 1968, while assigned to the Multi-Combat Aviation Battalion he received a mortar fragment wound to the upper right thigh and a wound to his private parts.  He was treated and returned to light duty. 

3.  The applicant further states that upon return to his unit he was wounded in the left knee by shrapnel from a rocket attack on 19 February 1969 at the beginning of the Tet 69 Counteroffensive.  He also received a small fragment wound to the right chest which penetrated his flak jacket.  The wound to the left knee and surrounding area consisted of damage to the patella, a through and through joint injury, and damage to the quadricep muscle.  He was treated initially at the 93rd Medical Detachment where fragments of shrapnel and bone were removed.  The chest wound was closed and covered with a band-aid and he was taken to the 93rd Evacuation Hospital for x-rays, further evaluation, and some treatment.  He returned to his unit with crutches, and he was placed on light/limited duty.  His compound remained under intermittent attack and high alert.  He continued to be treated at the 93rd Medical Detachment.  His bandages were changed, he received treatment for infection, and he continued on his crutches.

4.  The applicant further states that he had reconstructive surgery on the left knee at the VAMC in Washington, DC, on 5 July 1976.  He had additional surgery at Rush Presbyterian Medical Center, Chicago, Illinois, in 1982.  He has worn knee braces issued by the VAMC.  He has sustained a 1 1/2 inch loss of length of the left leg and he is required to wear orthopedic lifts and ankle support. He continues to walk with a cane and his orthopedic and prosthetic records are located at the Albuquerque VAMC.   

5.  In support of his application, the applicant provides copies of his 1969 Standard Form 600 (Health Record - Chronological Record of Medical Care), his DD Form 214, a diagram of his wounds, and a letter of support.

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 military records show he enlisted in the Regular Army, in pay grade E-1, on 21 August 1967.  He completed basic and advanced individual training and was awarded military occupational specialty 93H, Air Traffic Controller.  He served in Vietnam from 11 April 1968 to 8 January 1970, with the 25th Aviation Company during six campaigns.

3.  The applicant underwent a separation physical examination on 8 January 1970 that shows he injured his left knee in a rocket attack in February 1969.  No other wounds are noted.  He was found qualified for separation.

4.  The applicant submits a copy of his Standard Form 600 that shows, on 24 February 1969, he went to the Aviation Dispensary, 93rd Medical Detachment to have the dressing changed on his left knee.  It was noted the knee was quite tender and swollen.  He returned on 26 and 28 February 1969 to have the wound cleaned and dressing changed.  The document does not show how or when he sustained the wound.

5.  The applicant was honorably released from active duty, at the expiration of his term of service, in pay grade E-5, on 8 January 1970, as an overseas returnee.  He was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).

6.  Entries on the applicant's DD Form 214, Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), show the following awards:  the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, the Army Commendation Medal, and the Air Medal.  

7.  The DD Form 214 does not show the Purple Heart or the Purple Heart with first oak leaf cluster as authorized awards.  There are no orders in the applicant's military personnel records authorizing either of the awards.  Additionally, the applicant’s DA Form 2-1 (Personnel Qualification Record), Item 9 (Awards, Decorations, and Campaigns), does not list either of the awards.

8.  The applicant enlisted in the USAR on 12 February 1983 and served continuously until he was honorably discharged on 5 January 1994. 

9.  The Vietnam Casualty Roster, a compilation of all casualties during the Vietnam War, also does not show the applicant listed as a casualty and there are no medical treatment records available to show how or when the applicant may have been wounded.  

10.  A review of the Awards and Decorations Computer Assisted Retrieval System (ADCARS) which includes the records of the applicant's units for the timeframe the applicant served in Vietnam was conducted.  This review failed to show any orders were published authorizing award of the Purple Heart or the Purple Heart with first oak leaf cluster pertaining to the applicant.  

11.  A Department of Veterans Affairs (DVA) Rating Decision, dated 9 January 1990, shows the applicant filed a claim for an increase.  The rating decision states the applicant had been treated for a wound he sustained to his left knee in February 1969.  The rating decision also states that on 16 June 1988 he filed a claim for post-traumatic stress disorder (PTSD) benefits.  On 11 July 1988, he was asked to furnish additional evidence, but no reply was received and apparently his case was closed.  His claim was reopened on 11 July 1989.  

12.  A DVA Rating Decision, dated 24 September 1991, shows the applicant was awarded a 30 percent disability rating for a shell fragment wound to the left knee effective 25 August 1987 and a 30 percent disability rating for PTSD effective 
21 February 1991.  He was also awarded a 20 percent disability rating for left shoulder injury effective 18 June 1987 for a combined rating of 40 percent effective 18 June 1987 and a combined rating of 60 percent effective 
21 February 1991.

13.  The applicant also submits a copy of a letter, dated 24 January 2009, from the Department Commander, New Mexico, Military Order of the Purple Heart in support of his request.  The Department Commander stated that he served in Vietnam from 1968 to 1969 and that during that timeframe the applicant's aviation unit transported them on several occasions.  The Department Commander also stated that the applicant was first wounded by shrapnel from a mortar round and treated in Vietnam.  The applicant's wound was common knowledge because word spreaded quickly due to the area of his body where he sustained the wound.  The applicant was wounded a second time in the left knee, in February 1969.  The applicant has medical records for his left knee wound, but was unable to locate medical records for his first injury.  The Department Commander further stated that he believes the applicant is entitled to his long overdue Purple Heart for wounds received by the hands of the enemy while serving in Vietnam.

14.  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 military personnel, and the medical treatment must have been made a matter of official record.  A Purple Heart is authorized for the first wound suffered under the above conditions, but for each subsequent award an oak leaf cluster will be awarded.

DISCUSSION AND CONCLUSIONS:

1.  The regulation governing award of the Purple Heart specifically states that in order to support award of the Purple Heart, there must be evidence confirming
the wound for which the award is being made was received as a direct result of, or was caused by enemy action, that the wound was treated by medical personnel, and a record of this treatment must have been made a matter of official record.

2.  The available evidence contains no documents confirming that the applicant's wounds were caused by his participation in direct or indirect combat operation while serving in Vietnam.  While the evidence shows he received treatment by medical personnel for a wound that he sustained to his left knee, there is no evidence that shows he was wounded as a result of hostile action.  

3.  The letter that the applicant provided is not sufficient for granting this request. The available evidence does not show the applicant was ever recommended for or awarded the Purple Heart by proper authority.  Therefore, absent corroborating evidence confirming the applicant was wounded as a result of hostile action (medical documentation, chain of command supporting letters, etc.), the regulatory burden of proof necessary to support award of the Purple Heart or the Purple Heart with first oak leaf cluster has not been satisfied in this case.

4.  The fact that the applicant was granted service-connected benefits from the VAMC is not sufficient to meet the criteria for award of the Purple Heart or the Purple Heart with oak leaf cluster. 

5.  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)                                         AR20090003778



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ABCMR Record of Proceedings (cont)                                         AR20090003778


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