IN THE CASE OF:	  

		BOARD DATE:	      1JULY 2009

		DOCKET NUMBER:  AR20090003891 


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.

2.  The applicant states that he earned the Purple Heart while he was serving in Vietnam by being wounded during an enemy mortar attack.  He states that he declined to be recommended for award of the Purple Heart because a fellow Soldier was killed during the same incident.  He states that he was deserving of the Purple Heart; however, he was devastated by seeing his fellow Soldier’s body being placed in a poncho in pieces.

3.  The applicant provides in support of his application a self-authored letter, dated 16 February 2009, explaining the events that he contends led to his being wounded in action and his refusal to be awarded the Purple Heart; a letter, dated 13 February 2009, from an individual who contends that he was the medical specialist who treated him for a shrapnel wound on 1 April 1971, while he was in Vietnam and explaining why Soldiers with minor combat-associated injuries would elect not to be recommended for the Purple Heart; and a letter, dated
6 April 2009, from a relative (retired lieutenant colonel and his active duty colonel spouse) relating to the applicant's injury in Vietnam as recounted in letters from the applicant to his mother and grandparents.

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 23 September 1970, the applicant was inducted into the Army of the United States in Chicago, Illinois.  He successfully completed his required training and he was awarded military occupation specialty (MOS) 11C (light indirect fire crewman).  He arrived in Vietnam on 7 March 1971.

3.  The applicant returned to the continental United States (CONUS) on
13 February 1972 and he was honorably released from active duty (REFRAD) under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-3, for the convenience of the government.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.

4.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that the applicant was furnished at the time of his REFRAD does not show award of the Purple Heart.

5.  A review of the applicant’s Official Military Personnel File (OMPF) does not contain evidence that the applicant was ever wounded as a result of hostile action by enemy forces while he was in Vietnam.

6.  A review of the Vietnam Casualty Roster does not show the applicant was wounded as a result of enemy action.

7.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) is blank.

8.  In the self-authored letter that the applicant submitted in support of his application, he states that he served as a Combat Infantryman with 2nd Platoon, A Company, 2nd Battalion, 501st Infantry Brigade, 101st Airborne Division in the Republic of Vietnam.  He states that he was involved in several hostile ground operations and that on 1 April 1971 he was “choppered” on a mission to determine how many enemy were in the area.  He states that as soon as the chopper landed the mortar rounds started landing all around.  He states that he ended up in a fox hole/bunker along with another Soldier when a mortar landed immediately behind them both.  He states that he believed that he saw a leg flying in the air; however, he was struck by shrapnel in his left arm (elbow area).  He states that after being told by his commanding officer to move to a fox hole where the mortar round had already hit, he saw a fellow Soldier lying there with most of his face gone and that it was obvious he was missing some of his limbs.  He states that the fellow Soldier was placed in a poncho by the medic and a chopper was called in to collect his remains.  He states that when the mortars subsided, the medic began pulling chunks of shrapnel from those who incurred wounds during the mortar fire.  He states that the medic was collecting names of those to be submitted for the award of the Purple Heart and that he asked that he not be submitted because his wound paled in comparison to the fellow Soldier who was killed instantly.  He states that he now regrets that he made that decision.

9.  The letter, dated 13 February 2009, that the applicant submitted with his application is from the individual who contends that he was the medic who treated him for a shrapnel wound that he sustained during hostile ground operations in Vietnam on 1 April 1971.  In the letter, the individual stated that during the type of operations in which the applicant was involved, Soldiers with minor combat-associated injuries would elect not to be recommended for a Purple Heart because of humility and a Soldier’s sense of not being worthy of the medal for their minor injuries in comparison to watching a fellow Soldier be mortally wounded in the same action.  The individual states that during that time, he complied with the Soldier’s wishes out of a misguided sense of respect and shared mindset; however, he now realizes how remiss and misguided his actions were, regardless of how honorable his intentions were at the time.

10.  The applicant’s cousin and his wife submitted a memorandum, dated 6 April 2009, supporting his request to be awarded the Purple Heart and attesting that although they do not have actual evidence, they support the applicant's claim that he was wounded while serving in Vietnam.

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 is entitled to the award of the Purple Heart.

2.  His contentions have been noted and the documentation submitted on behalf of his application has been considered.  However, there is no evidence in the available record to substantiate or corroborate his contention that he was wounded as a result of hostile action.  Neither the Vietnam Casualty Roster nor the applicant's DA Form 20 shows he was wounded during his tenure of service.

3.  The statement made by the individual who contends that he was the medic who treated the applicant in Vietnam has also been noted.  His rationale for Soldier’s having no desire to be recommended for award of the Purple Heart for minor injuries in comparison to those Solders who were mortally wounded is understandable.  However, it is not understandable as to why, if the applicant was wounded as a result of hostile action, it was not made a matter of official record after he was treated.

4.  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.  There is no evidence of record and the applicant has failed to submit any evidence that would satisfy this requirement.

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.



      _________XXX_____________
               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)                                         AR20090003891



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ABCMR Record of Proceedings (cont)                                         AR20090003891


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