IN THE CASE OF:	  

		BOARD DATE:	  7 July 2009

		DOCKET NUMBER:  AR20090004351 


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.

2.  The applicant states that he was treated for injuries to his legs, arms, and chest at the 8th Field Hospital in Nha Trang, the Republic of Vietnam, as a result of a rocket/mortar attack.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 13 November 1970; a copy of a letter, dated 1 March 2005, from the Alaska Regional Office of the Department of Veterans Affairs; a copy of his DA Form 8-275-3 (Clinical Record Cover Sheet), dated 9 April 1970; a copy of his Standard Form (SF) 609, dated on various dates in 1970; a copy of his SF 89 (Report of Medical History) and SF 88 (Report of Medical Examination), dated 12 November 1970; a copy of a clinical record narrative summary, dated 9 April 1970; and copies of various other clinical, immunization, dental, and laboratory records, dated on miscellaneous dates in 1970, 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 records show he enlisted in the Regular Army for a period of 2 years on 5 May 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty 36C (Lineman).  He was honorably released from active duty in the rank/grade of specialist four/E-4 on 13 November 1970 and transferred to the U.S. Army Reserve Control Group (Annual Training) for completion of his military service obligation.  

3.  The applicant’s records show he served in the Republic of Vietnam from on or about 2 December 1969 to on or about 12 November 1970.  He was assigned to Headquarters and Headquarters Detachment, 21st Signal Group. 

4.  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, the Vietnam Campaign Medal, the Aircraft Crewmember Badge, and the Expert Marksmanship Qualification Badge with Rifle Bar (M-14).  Item 24 does not show award of the Purple Heart.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows a blank entry.  

6.  The applicant's name is not shown on the Vietnam Casualty Roster.

7.  There are no general orders in the applicant's records that show he was awarded the Purple Heart.

8.  The applicant's medical records are not available for review with this case.

9.  During the processing of this case, a member for the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the United States Army Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any Purple Heart orders on file for the applicant.


10.  The applicant submitted copies of various clinical and/or records of medical care, dated on various dates in 1970, that essentially show he suffered an infected cyst of the right cheek on 5 April 1970 and underwent an incision and drainage of this infection on 7 April 1970 at the 8th Field Hospital in the Republic of Vietnam.

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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 should be awarded the Purple Heart.

2.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather he/she is entitled to it upon meeting specific criteria.  When contemplating an award of this decoration, the key issue that must be taken into consideration is the degree to which the enemy caused the injury.  The fact that a proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.

3.  There are no general orders that show the applicant was awarded the Purple Heart; there is no evidence in his service personnel records that shows he was wounded or injured as a result of hostile action or treated for such wounds; and his name is not shown on the Vietnam Casualty Roster.  In the absence of documentation that shows he was wounded or injured as a result of hostile action and treated for those wounds, 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.




      _______ _   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)                                         AR20090004351





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ABCMR Record of Proceedings (cont)                                         AR20090004351



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