IN THE CASE OF:	  

		BOARD DATE:	       23 JULY 2009

		DOCKET NUMBER:  AR20090004627 


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 he was wounded in combat and as a result should be awarded the PH and it should be included on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

3.  The applicant provides a Standard Form (SF) 600 (Chronological Record of Medical Care), a DD Form 214, and a DD Form 215 (Correction to DD Form 214) 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 was inducted into the Army of the United States and entered active duty on 31 May 1967.  He was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman), and specialist four (SP4)/E-4 is the highest rank/grade he attained while serving on active duty.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 7 November 1967 to 4 November 1968 in item 31 (Foreign Service).  Item 40 (Wounds) is blank and the PH is not included in the list of awards contained in Item 41 (Awards and Decorations).

4.  The applicant's 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.  The record also does not include medical treatment records that indicate he was ever treated for a combat-related wound or injury while serving in the RVN. 

5.  On 29 May 1969, the applicant was honorably released from active duty (REFRAD) after completing a total of 1 year, 11 months, and 29 days of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued at the time does not show award of the PH.

6.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  There was no entry pertaining to the applicant on this list of RVN casualties.

7.  The applicant provides an SF 600 that includes an entry which shows he was treated for a small superficial fragment wound to his leg on 16 May 1968.  It also shows his x-ray was negative, his wound was cleaned and dressed, and that he was returned to duty after a few days of observation in the training area.  

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 request to be awarded the PH and the evidence he provided were 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 evidence of record fails to corroborate the applicant's claim that he was wounded in action in the RVN.  Item 40 of his DA Form 20 is blank, which indicates he was never wounded in action.  Further, there are no orders or other documents on file in his record that indicate he was ever recommended for or awarded the PH by proper authority or that he ever pursued award of the PH while he was on active duty. 

3.  The SF 600 provided by the applicant indicates he sustained a superficial fragment wound to his leg; however, it contains no information regarding how this wound was sustained, and it fails to confirm the wound was received as a result of enemy action.  

4.  Finally, the applicant's name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  Therefore, absent any evidence of record confirming the wound for which the applicant was treated was received as a result of enemy action, or that he was ever recommended for or awarded the PH by proper authority while serving on active duty, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case. 

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.



      ________XXX_______________
               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)                                         AR20090004627



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ABCMR Record of Proceedings (cont)                                         AR20090004627



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