IN THE CASE OF:
BOARD DATE: 4 August 2009
DOCKET NUMBER: AR20090004828
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 he received multiple shrapnel wounds while in combat in Vietnam. He contends that he only had wound dressings in the field and they were never recorded.
3. The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a Department of Veterans Affairs rating decision in support of this 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 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 was inducted into the Army on 16 May 1968 and upon completion of initial entry training was awarded military occupational specialty 11B (Light Weapons Infantryman). He served in Vietnam from 13 October 1968 to 12 October 1969 and was honorably released from active duty on 15 May 1970.
3. Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 does not show the Purple Heart as an authorized award.
4. There are no orders in the applicant's records awarding him the Purple Heart and his name does not appear on the Vietnam Casualty List.
5. Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) is blank.
6. There is no entry in Item 41 (Awards and Decorations) on the applicant's DA Form 20 showing he was awarded the Purple Heart.
7. The applicant provided a Department of Veterans Affairs rating decision which shows he was seeking service connected disability compensation for scars of face below left eye and anterior aspect of neck, residuals of shrapnel wounds.
8. 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 by medical personnel, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. To be awarded the Purple Heart, substantiating evidence must be presented to show that the Soldier was wounded as the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.
2. There is no evidence and the applicant provided none to show he was wounded as a result of hostile action. The applicant's name does not appear on the Vietnam Casualty Listing. There were no entries made in his service personnel records to show he was wounded as a result of hostile action and no orders were published awarding the applicant the Purple Heart.
3. In the absence of evidence showing the applicant was wounded as a result of hostile action, the Department of Veterans Affairs rating decision provided by the applicant is insufficient evidence on which to base 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) AR20090004828
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