IN THE CASE OF:
BOARD DATE: 30 July 2009
DOCKET NUMBER: AR20090004542
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 that his records be corrected to show he was awarded the Purple Heart.
2. The applicant states that he was injured when an armored personnel carrier (APC) flipped over after running over something. He was trapped under water and unconscious. He received medical treatment for his injuries.
3. The applicant provides a casualty listing for his unit which shows that the applicant was treated for klebsiella pneumonia, which was coded as "LOYAL," which denoted non-hostile serious injury or very serious injury.
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's military records show that he was inducted in the Army on 6 August 1969, was awarded the military occupational specialty of armor reconnaissance specialist, and was promoted to pay grade E-3. He served in Vietnam from 6 January to 28 November 1970.
3. While in Vietnam, on 17 October 1970, the applicant was hospitalized for klebsiella pneumonia. The casualty report was coded "LOYAL."
4. The applicant was honorably released from active duty at the expiration of his term of service on 6 August 1971. His DD Form 214 (Report of Separation from Active Duty) does not list the Purple Heart.
5. The applicant's DA Form 20 (Enlisted Qualification Record), Item 40, Wounds, is blank. Item 41, Awards and Decorations, does not show the Purple Heart.
6. There are no orders for the Purple Heart in the applicant's record.
7. The applicant reenlisted on 10 May 1974 and was given a general discharge for unsuitability, apathy, defective attitudes or inability to expend effort constructively, on 1 November 1976.
8. Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for wounds 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 by a medical officer, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. The applicant was hospitalized for pneumonia, not for injuries. The applicant does not contend that hostile action caused his APC to turn over, and his accident report codes his injury "LOYAL," which denoted non-hostile serious injury or very serious injury.
2. Since all records show that the applicant's hospitalization was due to non-hostile causes, the available evidence indicates he does not meet the criteria for award of the Purple Heart.
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) AR20090004542
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ABCMR Record of Proceedings (cont) AR20090004542
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