IN THE CASE OF:
BOARD DATE: 21 JULY 2009
DOCKET NUMBER: AR20090004330
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 a wound he received in action in Vietnam.
2. The applicant states he was wounded in action in August 1971 in Vietnam, but he never received the Purple Heart.
3. The applicant provides no additional documents 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was inducted into the Army of the United States on 13 January 1971. At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty 05B (radio operator). The highest grade he attained was specialist four, E-4.
3. He served in Vietnam from 25 June 1971 through 17 March 1972. There is no evidence of record which shows he was wounded in action during his tour in Vietnam.
4. His DA Form 20 (Enlisted Qualification Record) does not list the Purple Heart in item 41 (Awards and Decorations).
5. There are no orders in the applicant's personnel records which show he was awarded the Purple Heart. His DA Form 20 does not list any wounds as a result of hostile action in item 40 (Wounds). His name is not included on the Vietnam Casualty Roster.
6. The applicant was separated on 18 March 1972. His DD Form 214 does not show entitlement to award of the Purple Heart.
7. Army Regulation 600-8-22 provides, in pertinent part, that the PH 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. Paragraph 2-8b(2) states that for the purpose of considering an award of the PH, a wound is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy. The regulation states that the key issue that commanders must take into consideration is the degree to which the enemy caused the injury. The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.
DISCUSSION AND CONCLUSIONS:
1. The applicant states he was wounded in action in August 1971 in Vietnam, but he never received the Purple Heart. However, there is no evidence of record which shows he sustained a wound as a result of hostile action in Vietnam.
2. By regulation, in order to award the Purple Heart it is necessary to establish that a Soldier was wounded in action, that the wound required treatment by medical personnel, and the treatment must have been made a matter of official record.
3. In the absence of any other corroborating evidence of record which shows the applicant was wounded or injured as a result of hostile action, there is insufficient evidence upon which to base award of the Purple Heart in this case.
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.
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