IN THE CASE OF:	  

		BOARD DATE:	      28  July 2009

		DOCKET NUMBER:  AR20090003882 


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 that he be awarded the Purple Heart (two awards).

2.  The applicant states, in effect, that he should have been awarded the Purple Heart for wounds he received in Vietnam on 4 March and on 2 November 1968.

3.  In support of his application, the applicant submits a personal statement, a copy of his DA Form 20 (Enlisted Qualification Record), and a copy of his medical treatment records for the period 1966 through 1968.

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 records show he enlisted in the Regular Army on 26 October 1966.  He completed basic combat training and advanced individual training at Fort Dix, New Jersey.  On completion of training, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant served in Vietnam from 3 December 1967 through 24 November 1968, with Company C, 2nd Battalion, 506th Infantry Regiment, 101st Airborne Division.

4.  The applicant was honorably released from active duty, on 5 September 1969, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), to enter or return to college, university, or equivalent educational institution.  He was separated in the rank/pay grade of sergeant, E-5.  On the date he was released from active duty, he had completed 2 years, 10 months, and 10 days of active military service and he had no lost time.

5.  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 Republic of Vietnam Campaign Medal with Device (1960), the Bronze Star Medal, the Air Medal, the Army Commendation Medal with "V" Device and with one oak leaf cluster, the Combat Infantryman Badge, the Parachutist Badge, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bars (M-14 and M-16 Rifles).  Neither a Purple Heart nor a Purple Heart with oak leaf cluster are among the applicant's authorized awards.

6.  There is no entry in item 40 (Wounds) of the applicant's DA Form 20 to show he received a wound in action against a hostile force in either March or in November 1968.

7.  There is no entry in item 41 (Awards and Decorations), of the applicant's DA Form 20, showing he was awarded the Purple Heart or the Purple Heart with oak leaf cluster to annotate a second award.

8.  There are no orders in the applicant's military personnel records awarding him the Purple Heart or the Purple Heart with oak leaf cluster.

9.  The applicant's name does not appear on the Vietnam casualty list.

10.  Review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders awarding the applicant a Purple Heart.

11.  In the applicant's personal statement he indicates that he served as an infantryman in ground operations until he was medically evacuated from Vietnam in November 1968.  He states, in effect, on 4 March 1968 while his unit was sweeping along a river in Bien Hoa Province, shooting and explosions broke out.  It was during one of these explosions that he sustained shrapnel wounds to his left hand and the left side of his chest.  He was given immediate medical treatment by a medic and he remained with his unit until the unit returned to their base camp at Phouc Vinh on 8 March 1968.  The applicant provided no evidence of medical treatment for this incident on 4 March 1968.

12.  The applicant continues his statement by saying that on 2 November 1968 he and his unit were on ground operations in Thua Thien Province.  During the evening, while they were in a night defensive position, enemy Soldiers attempted to infiltrate their location.  An enemy grenade exploded and the concussion dislocated his right shoulder.  He was given immediate treatment by a doctor who injected him with morphine and reset his right arm back into position.  He returned to the base camp on 9 November 1968 and he received follow up treatment at that time.  He was ultimately referred to a surgical unit for an orthopedic examination and he was subsequently medically evacuated back to the United States to receive further medical treatment.

13.  The applicant submitted a collection of medical records with entries dated from 26 December 1966 through 16 October 1968.  Not all of these records display a name or a service number to identify who the records belong to.  An entry dated 8 March 1968 was made on one of the medical records that were submitted.  The entry reads as follows:  "cc (chief complaint) to Rx Room for removal of shrapnel which has been in (L [left]) side of chest for 4 days."  Only the chief complaint is recorded.  The entry does not include a description of the medical treatment that was given the applicant and neither does it have the signature of the person who administered the medical treatment.  There is no evidence of follow up treatment given the applicant after the alleged shrapnel was removed (for example:  dressing changes, removal of sutures, supplemental administration of antibiotics, etc.).  The entry also does not indicate whether the shrapnel was a result of enemy activity.

14.  The applicant submitted a copy of a Standard Form 513 (Clinical Record - Consultation Sheet) to support his contention he should be awarded the Purple Heart for a wound [a dislocated right shoulder] he sustained on 2 November 1968.  The Standard Form 513 essentially states that the applicant first dislocated his right shoulder in August 1967 while he was attending jump school.  The dislocation was documented by x-ray.  The Standard Form 513 also indicates the applicant had recurrent episodes of dislocation 7 times since then.  Two dislocations had allegedly occurred in the past week - one had allegedly occurred from a grenade concussion and one had allegedly occurred when he slipped and grabbed a tree branch.  The Standard Form 513 indicates the applicant's appointment at the Orthopedics Section of the 22nd Surgical Hospital was not for treatment but it was for diagnosing of his alleged wound.  The Standard Form 513 shows that x-rays were taken; however, no defects were seen.  After examination, a recommendation for  hospitalization and medical evacuation from Vietnam was determined to be the appropriate course of action.  There is no evidence that any treatment was administered (for example:  application of a cast or splint, injection of drugs to control pain, etc).

15.  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, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  To be awarded the Purple Heart, substantiating evidence must be presented to show the Soldier was wounded as a result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

2.  The applicant provided no documentary evidence of the immediate medical treatment he contends he received on 4 March 1968.  The evidence does show that he was seen on 8 March 1968 for his chief complaint of shrapnel in the left side of his chest which allegedly had been there for 4 days.  Only the chief complaint is recorded on the medical record he submitted as evidence.  The entry does not describe the medical treatment that the applicant received, neither does it indicate if the shrapnel was a result of enemy activity.  The entry in the medical record also does not have the name or signature of the person who recorded the applicant's chief complaint.  It should be noted that the records of medical treatment available contain no evidence of any follow up treatment given to him after the alleged shrapnel was removed.

3.  The evidence the applicant provided is inconclusive and does not support award of the Purple Heart.  The evidence does show the applicant complained of shrapnel in his chest; however, the medical records entry does not form a basis for award of the Purple Heart to him.

4.  The Standard Form 513 the applicant submitted to support his request for award of the Purple Heart for an injury he states he sustained on 2 November 1968 as a result of an explosion due to an enemy grenade shows the applicant had experienced recurrent dislocations of the right shoulder.  The dislocation he was experiencing at the time he sought medical treatment was the seventh since he accidentally dislocated his shoulder in jump school in August 1967.  The Standard Form 513 shows the applicant's shoulder was dislocated twice in the week during which he was seen at the 22nd Surgical Hospital - once from the concussion of a grenade, and once when he slipped and grabbed a tree branch.

5.  The applicant provided no record of medical treatment he may have received on the evening of 2 November 1968 which is the evening his shoulder was allegedly dislocate by concussion from an enemy hand grenade.

6.  The applicant's name does not appear on the Vietnam casualty listing.  There were no entries made in his service personnel records to show he was wounded as a result of hostile action.

7.  Based on the evidence in this case, the applicant is not entitled to award of the Purple Heart and to have it added to his DD Form 214.

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)                                         AR20090003882



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ABCMR Record of Proceedings (cont)                                         AR20090003882



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