IN THE CASE OF:	  

		BOARD DATE:	       21 July 2009  

		DOCKET NUMBER:  AR20090004552 


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, he was wounded in action while serving in the Republic of Vietnam (RVN).   

3.  The applicant provides three third-party VA Forms 21-4138 (Statements in Support of Claim), all dated in 1993, 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 (RA) and entered active duty on 9 May 1969.  He was awarded, held, and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman) and MOS 11E (Armor Crewman).  His record further shows he was promoted to specialist five (SP5)/E-5 on 20 February 1971, and that this is the highest rank/grade he held and served in while on active duty.  

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows that he served in the RVN from 31 October 1970 through 23 November 1971.  Item 38 (Record of Assignments) shows that during his RVN tour he was assigned to Company C, 1st Battalion, 77th Armor from 19 November 1970 through 18 July 1971, and to Troop B, 1st Battalion, 10th Cavalry Regiment from 19 July through 9 October 1971, performing duties in MOS 11E.  

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, or of any medical treatment records that show he was treated for a combat-related wound by medical personnel.

5.  On 23 November 1971, the applicant was honorably released from active duty (REFRAD), in the rank of SP5, after completing 2 years, 6 months, and 15 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 shows he earned the following awards during his active duty tenure:  National Defense Service Medal, Army Commendation Medal, Vietnam Service Medal with 2 bronze service stars, and RVN Campaign Medal with Device (1960).  The PH is not included in the list of awards contained on the DD Form 214.  

6.  The applicant provides three VA Forms 21-4138 completed by two individuals who served with him in the RVN.  These statements recount a rocket attack on their tank but neither indicates they specifically witnessed the applicant being wounded.  One statement does indicate that when the applicant jumped in their foxhole, they took gravel from his scalp but that there was no shrapnel.  There is also no indication that the applicant was treated for wounds related to this incident by medical personnel.  

7.  During the processing of this case, a member of the Board 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 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 medical personnel, and a record of this medical treatment must have been made a matter of official record. 

2.  The third-party statements provided by the applicant confirm only that the applicant was present during a rocket attack and that he had some gravel removed from his head when he jumped into a foxhole.  Neither third-party actually witnessed the applicant being wounded nor is there an indication that he required medical treatment by medical personnel as a result of this incident.  Therefore, these statements are not sufficient to establish that the applicant actually received a wound as a result of enemy action during this incident that required treatment by medical personnel, as is required by the regulation to support award of the PH.  

3.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action.  His record is 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.  

4.  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 and/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.  As a result, 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. 

5.  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.   

6.  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)                                         AR20090004552



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ABCMR Record of Proceedings (cont)                                         AR20090004552



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