IN THE CASE OF:	  

		BOARD DATE:	        21 July 2009  

		DOCKET NUMBER:  AR20090004521 


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, that while serving in the Republic of Vietnam (RVN), he was hit with debris/shrapnel and was treated by medical personnel.  He claims he was offered the PH at the time.  

3.  The applicant provides a Bronze Star Medal certificate and citation and a Department of Veterans Affairs (VA) letter 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 enlisted in the Regular Army and entered active duty on 24 October 1968, and he was awarded, held and served in military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman).  His record further shows he was promoted to specialist four (SP4) on 9 November 1969, and that 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 12 April 1969 through 1 April 1970.  Item 38 (Record of Assignments) shows that during his RVN tour he was assigned to Company E, 2nd Battalion, 501st Infantry Regiment from 28 April through 14 November 1969, performing duties in MOS 11C and to Headquarters and Headquarters Company (HHC), 101st Airborne Division from 15 November 1969 through 28 March 1970, performing duties in MOS 94A as a waiter in the Commanding General's Mess.  

4.  Item 40 (Wounds) of the applicant's DA Form 20 is blank and Item 41 (Awards and Decorations) does not include the PH in the awards listed.  His record is void of any orders or other documents that show he was ever recommended for or awarded the PH by proper authority.  He record is also void of any medical treatment records that show he was treated for a combat related wound by military medical personnel.

5.  On 22 October 1971, the applicant was honorably released from active duty (REFRAD), in the rank of SP4, after completing 2 years, 11 months, and 29 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, as amended by a correction to his DD Form 214 (DD Form 215) issued on 16 July 2007, shows he earned the following awards during his active duty tenure:  National Defense Service Medal, Bronze Star Medal, Army Commendation Medal, Vietnam Service Medal with 3 bronze service stars, RVN Campaign Medal with Device 1960, Meritorious Unit Commendation, RVN Gallantry Cross with Palm Unit Citation, RVN Civil Actions Honor Medal First Class Unit Citation, Combat Infantryman Badge, Expert Marksmanship Qualification Badge with Rifle (M-14 & M-16) Bar, and 2 Overseas Service Bars.  

6.  The applicant provides a BSM certificate and citation that show he was awarded the BSM for meritorious service in the RVN during the period 1 May 1969 through 28 February 1970.  These documents contain no reference to the applicant being wounded in action.  

7.  During the processing of this case, a member of the Boards 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 is entitled to the PH based on being 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 BSM certificate and citation provided by the applicant confirm he received the BSM for his service in the RVN; however, these documents make no reference to him being wounded in action.  Item 40 of his DA Form 20 is blank, which indicates he was never wounded in action.  His record is also void of any orders or other documents 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.  Absent any evidence of record confirming the applicant was wounded in action or treated for a combat-related wound while serving in the RVN, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Therefore, absent any evidence of record to corroborate the applicant's claim, it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to support award of the PH. 

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)                                         AR20090004521



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ABCMR Record of Proceedings (cont)                                         AR20090004521



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