IN THE CASE OF:	

		BOARD DATE:	28 July 2009    

		DOCKET NUMBER:  AR20090004519 


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 shot in his right ankle during combat in Song Ve, Vietnam while he was on assignment near Phuoc Binh and that he was not awarded the Purple Heart. 

3.  The applicant does not provide any supporting documents with his application.  However, he states all his records exist at the Regional Department of Veterans Affairs (VA) office in Houston, Texas.

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 enlisted in the Regular Army on 5 June 1968 for a 2-year period of service.  He successfully completed basic combat training and advanced individual training and he was awarded military occupational specialty 13A (Field Artilleryman).

3.  The applicant was assigned to Battery B, 6th Battalion, 27th Artillery in the Republic of Vietnam from 28 February 1968 to 22 February 1970.  

4.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) contains no entry.

5.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not show award of the Purple Heart.

6.  On 25 February 1970, the applicant was released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement).  His DD Form 214 shows he completed 1 year, 8 months, and 21 days of active service that was characterized as honorable and he served in the Republic of Vietnam for 11 months and 29 days.

7.  Item 24 (Decorations, Medal, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 (Armed Forces of the U.S. Report of Transfer or Discharge), which he authenticated with his own signature, shows award of the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Army Commendation Medal and the Army Good Conduct Medal.  There is no entry for the Purple Heart.

8.  The applicant’s name is not listed on the Vietnam Casualty Roster as being wounded or injured by enemy forces.

9.  There are no orders in the applicant's military personnel service records awarding him the Purple Heart.

10.  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.

11.  A review of the applicant’s military personnel record shows he was awarded:

   a. the Army Commendation Medal for Heroism on 12 May 1969 in the Republic of Vietnam Theater of Operations for valorous acts when Camp Martin was attacked from combined forces of Viet Cong and North Vietnamese troops.  His efforts curtailed the enemy's attempts to employ satchel charges and prevented their maneuvering to more advantageous locations.  The applicant held his position firing on enemy forces until relieved by infantry forces.  The announcement was made through the publication of General Orders Number 2881, dated 29 July 1969, and published by Headquarters, U.S. Army Vietnam.  However, the award citation does not mention the applicant being wounded.
   
   b. the Army Commendation Medal on 17 January 1970 by Headquarters, II Field Force Vietnam Artillery, General Orders Number 148 for meritorious service from March 1969 to January 1970.

12.  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, and the medical treatment must have been made a matter of official record.  

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his right ankle was injured while under hostile fire and he requests award of the Purple Heart.

2.  The applicant's record shows that he was engaged with enemy forces in the Republic of Vietnam.  However, there is no evidence to show that he was wounded while engaging hostile enemy forces or that he received medical treatment for any such wounds.

3.  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 award of the Purple Heart. 

4.  While not requested by the applicant, it is clear an error exists on his DD Form 214 with the omission of the Army Commendation Medal for Heroism awarded by general orders on 29 July 1969.  As such, it would now be appropriate to correct his record to show award of the Army Commendation Medal with Oak Leaf Cluster and “V” device.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period ending 25 February 1970 to:

   a.  delete in item 24 the Army Commendation Medal; and
   
   b.  add in item 24 the Army Commendation Medal with Oak Leaf Cluster and “V” Device.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the Purple Heart.




      _______ _   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)                                         AR20090004519



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ABCMR Record of Proceedings (cont)                                         AR20090004519



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