BOARD DATE:	  25 August 2009

		DOCKET NUMBER:  AR20090004949 


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 an additional Purple Heart.

2.  The applicant states that in October 1969, he was treated at Dover Air Force Base and had shrapnel removed from his back.  He continues, in effect, that this was the result of an incident subsequent to the incident for which he was previ-ously awarded the Purple Heart.  The applicant concludes that he would like his records reviewed to determine his eligibility for award of a second Purple Heart.

3.  The applicant provides no documentary evidence 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 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 that he served in the United States Army Reserve, the Army National Guard, and the Regular Army during the period of October 1956 and 30 April 1980, when he retired.  At the time of his retirement, the applicant held the rank of sergeant first class (SFC)/pay grade E-7 and military occupational specialty 00E (Recruiter).

3.  Headquarters, 5th Special Forces Group (Airborne), 1st Special Forces, General Orders Number 319, dated 15 March 1969, awarded the applicant the Purple Heart for wound received in connection with military operations against a hostile force on 24 February 1969.

4.  Item 4 (Assignment Considerations) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows that he sustained a fragmentation wound to his left shoulder on 29 February 1969.  Item 5 (Oversea Service) shows that he served a tour of duty in the Republic of Vietnam during the period of 2 October 1968 through 1 October 1969.  Item 9 (Awards, Decorations and Campaigns) shows the applicant was awarded one Purple Heart.  Item 35 (Current and Previous Assignments) shows that his tour of duty in the Republic of Vietnam was his only combat tour.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 for the period of 27 September 1966 through 26 September 1969, shows he was awarded one Purple Heart.  The applicant's DD Form 214 for the period ending 30 April 1980 also only shows award of one Purple Heart.

6.  The applicant's name does not appear on the Vietnam Casualty Roster.  There is no evidence in the available records which shows the applicant was wounded a second time, recommended for, or awarded a second Purple Heart.

7.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a direct 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 military medical personnel, and the medical treatment must have been made a matter of official record.  

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an 
investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded an additional Purple Heart was carefully considered and determined to lack merit.

2.  Evidence shows the applicant sustained a shrapnel injury to his left shoulder in February 1969 while serving in the Republic of Vietnam and was subsequently awarded the Purple Heart as a result of this wound.

3.  The applicant's name does not appear on the Vietnam Casualty Roster and his service personnel file is void of any evidence that the applicant was wounded a second time.

4.  In the absence of evidence that the applicant was wounded or injured as a result of hostile action, there is insufficient evidence upon which to base award of an additional Purple Heart in this case.  As a result, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  Therefore, it would not be appropriate to grant the requested relief.

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  This action 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)                                         AR20090004949





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090004949



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1