IN THE CASE OF:	

		BOARD DATE:	23 July 2009    

		DOCKET NUMBER:  AR20090004147 


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, award of the Purple Heart (PH).  

2.  The applicant states, in effect, he was wounded and required stitches in his head during an enemy rocket attack while in the Republic of Vietnam (RVN).  After being stitched up, he returned to his sentry post and he was never awarded the PH.  

3.  The applicant provides a medical treatment record 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.  The applicant's record shows he was inducted into the Army and entered active duty on 9 December 1968, and that he was trained in, awarded, and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman).  His record further shows he was promoted to specialist four (SP4), on 26 November 1969, and this is the highest rank he attained while serving on active duty. 

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows that he served in the RVN from 21 May 1969 through 15 April 1970.  Item 38 (Record of Assignments) shows that during his RVN tour he was assigned to Company C 5th Battalion, 46th Infantry Regiment, performing duties in MOS 11B as a rifleman and automatic rifleman.  Item 40 (Wounds) is blank and Item 41 (Awards and Decorations) does not include the PH in the awards listed.  

4.  The applicant's record is void of any orders or other documents that show he was ever recommended for or awarded the PH by proper authority, or of any medical treatment records that show he was treated for a combat related wound by military medical personnel.

5.  On 10 September 1970, the applicant was honorably released from active duty (REFRAD), in the rank of SP4, after completing 1 year, 9 months, and 
2 days of active military service.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued on the date of his REFRAD shows he earned the following awards during his active duty tenure:  National Defense Service Medal, Vietnam Service Medal with 2 bronze service stars, RVN Campaign Medal, Combat Infantryman Badge, Expert Marksmanship Qualification Badge with Rifle Bar and 2nd Class Gunner Badge with Machinegun Bar.  The PH is not included in the list of awards on the DD Form 214.  

6.  The applicant provides a medical treatment record that shows he was treated for a laceration to his head and received three stitches on 10 October 1968.  This document contains no indication that the laceration for which he was treated was received as a result of enemy action.  

7.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  No entry pertaining to the applicant was found on this list of RVN casualties.  


8.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH.  It states, in pertinent part, that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action; that the wound required treatment by military medical personnel; and a record of this medical treatment must have been made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the PH because he was wounded in action in the RVN was carefully considered.  However, by regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action; that the wound required treatment by military medical personnel; and a record of this medical treatment must have been made a matter of official record. 

2.  The medical treatment record provided by the applicant that shows he was treated for a laceration to his head and received stitches, on 10 October 1968, contains no information regarding how the wound was sustained or whether or not it was caused by enemy action.  Item 40 of his DA Form 20 is blank, which indicates he was never wounded in action.  Further, there are no orders or other documents in his record that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty, and it contains no medical treatment records that indicate he was ever treated for a combat-related wound while serving in the RVN.  

3.  Finally, the applicant's name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  Therefore, absent any evidence of record that corroborates the laceration he was treated for on 10 October 1968 was received as a result of enemy action, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case. 

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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 related to award of the PH.   

5.  The applicant and all others concerned should know that this action related to award of the PH in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  

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)                                         AR20090004147



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ABCMR Record of Proceedings (cont)                                         AR20090004147



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