IN THE CASE OF:	

		BOARD DATE:	21 July 2009    

		DOCKET NUMBER:  AR20090003999 


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 for wounds received in the Republic of Vietnam. 

2.  The applicant states that he received shrapnel wounds during a mortar attack.  One piece of shrapnel was removed at the 2nd Surgical Hospital in the Republic of Vietnam.  The second piece of shrapnel is still in his body.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); Standard Form 89 (Report of Medical History), dated 24 December 1967; and two radiographic reports, dated in March 1968, 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.  On 30 December 1965, the applicant was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialty 70A (Clerk).  He completed the Basic Airborne course and was subsequently assigned for duty as a clerk with the 187th Airborne Infantry Regiment at Fort Campbell, Kentucky.

3.  On 14 February 1967, the applicant departed Fort Campbell, Kentucky, for assignment in the Republic of Vietnam.  He arrived in the combat theater on or about 17 March 1967.

4.  On 20 March 1967, the applicant was assigned for duty as a clerk typist with Headquarters and Headquarters Company, 5th Special Forces Group (Airborne), 1st Special Forces.

5.  On 14 April 1967, the applicant departed the 5th Special Forces Group (Airborne) for duty with the 1st Brigade, 101st Airborne Division.

6.  On 24 April 1967, the applicant reported for duty as a clerk with the 2nd Battalion, 327th Infantry Regiment.

7.  On or about 23 December 1967, the applicant returned to the United States.

8.  The applicant stated in items 20 and 33 of his Standard Form 89, dated 24 December 1967, that he suffered from malaria and had sustained two fragment wounds to his left buttock.  He further stated that one of the metal pieces had been removed while he was still in the Republic of Vietnam and the other piece was still in his body.

9.  Standard Form 88 (Report of Medical Examination), dated 24 December 1967, makes no mention of any shrapnel wounds or scars on his buttocks.

10.  On 24 December 1967, the applicant was released from active duty.  He had attained the rank of private first class, pay grade E-3 and had completed 1 year, 11 months, and 25 days of creditable active duty.

11.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 lists his awards as the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Parachutist Badge, and the Expert Marksmanship Qualification Badge with Rifle Bar.  It does not show award of the Purple Heart.

12.  A 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 the Purple Heart.

13.  The applicant’s name is not listed on the Vietnam casualty roster.

14.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) is blank.  Item 41 (Awards and Decorations) of this same form shows the same awards as listed on his DD Form 214.  The Purple Heart is not listed.

15.  Army Regulation 600-8-22 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.

16.  The radiographic reports [appear to be from the Department of Veterans Affairs] provided by the applicant show that in December 1968 a metallic foreign body in the soft tissues of his left buttock and a 1/4-inch round scar described as shrapnel wounds.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he sustained shrapnel wounds during a mortar attack while serving in the Republic of Vietnam but was never awarded the Purple Heart.  He further contends that he received medical treatment at the 2nd Surgical Hospital in the Republic of Vietnam.

2.  The applicant's name is not listed on the Vietnam casualty roster.  The applicant's DA Form 20 does not show that he was wounded in action or awarded the Purple Heart for any wounds received in action.

3.  The medical evidence provided by the applicant is inconclusive in that it does not contain any evidence pertaining to the circumstances surrounding the applicant's reported shrapnel wounds.

4.  Regrettably, in view of the above the applicant's request for award of the Purple Heart should be denied.



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)                                         AR20090003999



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ABCMR Record of Proceedings (cont)                                         AR20090003999



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