IN THE CASE OF:	

		BOARD DATE:	28 July 2009    

		DOCKET NUMBER:  AR20090005048 


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, that he be awarded the Purple Heart and that it be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states, in effect, that he was under the impression that he had to be shot or wounded in action in actual combat to be awarded the Purple Heart.

3.  The applicant submits a copy of his DD Form 214; a copy of a letter he addressed to his Member of Congress (MOC) dated 3 November 2008; a copy of what appears to be a chronological record of medical treatment; a copy of a letter he addressed to the Commander, PERSCOM (US Army Personnel Command [now the US Army Human Resources Command]); and two statements of support authored by a former fellow Soldier (one addressed to the applicant's MOC and the other written in general).

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 was inducted into the Army of the United States on 6 July 1965.  He completed his basic combat training at Fort Polk, Louisiana, and his advanced individual training at Aberdeen Proving Ground, Maryland.  After completing all required training, he was awarded the military occupational specialty (MOS) 16C (Hercules Missile Fire Control Crewman).  The applicant was later reclassified and was awarded the MOS 56A (Supply Handler).  This is the MOS he held on his release from active duty.

3.  The applicant served in Vietnam from 3 October 1966 through 27 June 1967, with the 561st Transportation Company (Terminal Service).

4.  The applicant was honorably released from active duty on 28 June 1967, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) as an overseas returnee prior to the expiration of his term of service.  He was separated in the rank/pay grade of Private First Class/E-3.  On the date he was released from active duty, he had completed 1 year, 11 months, and 23 days active military service, with no days time lost.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded:  the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (60) and the Marksman Marksmanship Qualification Badge with Rifle Bar [M-14 Rifle].  The Purple Heart is not shown on the applicant's DD Form 214.

6.  There is no entry in Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record), to show that he received a wound in action against a hostile force.

7.  There is no entry in Item 41 (Awards and Decorations) of the applicant's DA Form 20 showing he was awarded the Purple Heart.

8.  There are no orders in the applicant's military personnel records awarding him the Purple Heart.

9.  The applicant's name does not appear on the Vietnam Casualty List.


10.  A copy of a Standard Form (SF) 88 (Report of Medical Examination) and 89 (Report of Medical History) which were completed at the time of the applicant's separation physical examination are on file in his personnel record.  Both these documents are void an entry showing the applicant was wounded as a result of enemy activity while he served in Vietnam.

11.  A review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, was conducted to determine if the applicant was awarded the Purple Heart.  This search failed to reveal any orders were published awarding the Purple Heart to the applicant.

12.  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, and the medical treatment must have been made a matter of official record.  

13.  In the letter the applicant addressed to his MOC, he states that he feels strongly he should be awarded the Purple Heart.  He states that he meets all the criteria for award of the Purple Heart and further states that a doctor in Vietnam determined that a gash on his foot had been caused by shrapnel (a shell fragment).

14.  In the letter/statement the applicant addressed to the Commander, PERSCOM, he stated he was submitting a statement from one of his buddies who was stationed with him in Vietnam.

15.  In the statement submitted to the applicant's MOC by his former fellow Soldier in support of the applicant's request for award of the Purple Heart, the former fellow Soldier states, "I remember that we were sitting together taking a break from a long working day with other GIs when the Ammo Dump at Long Binh exploded.  I witnessed [the applicant's] right foot injury caused by shrapnel.  Later that evening we found out that the powerful explosion was caused by Viet Cong sappers."

16.  In the hand-written statement which was written in general, the applicant's former fellow Soldier states he was with the applicant on the night the Long Binh ammunition dump exploded.  It caused a huge orange mushroom-type explosion and it seemed it was going to reach their perimeter.  As they ran down the hillside, the applicant received an injury to his right foot by shrapnel.

17.  In support of his request the applicant submitted what appears to be a chronological record of medical treatment.  This record does not have a name or a service number to identify to whom it belongs.  The last entry on the record reads:  23 June 1967 - 541st Dispensary / Laceration right foot.  Disp:  Dressing - Tetanus.  "DB."  Below this entry, the applicant has written in red ink:  7 February 1967 / Long Binh Ammo Dump Explosion @ P.M. / and 8 February 1967 / Treated foot for shrapnel injury @ a.m.  In Item 9 (In Support of . . . . ), of the DD Form 149 (Application for Correction of Military Record) the applicant submitted, he stated that the date 23 June 1967 was incorrect and it should be changed to February 1967.

18.  A copy of an SF 601 (Immunization Record) which has the applicant's name and service number shows he received a Tetanus Toxoid shot on 23 June 1967.  The date the Tetanus shot was administered corresponds with the date on the last entry found on the document the applicant submitted which appears to be a chronological record of medical treatment.

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, 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 that he was wounded as the result of hostile enemy activity.

3.  The statements of support provided by the applicant's former fellow Soldier were considered; however, the applicant's name does not appear on the Vietnam Casualty Listing and there were no entries made in his service records to show he was wounded as a result of hostile action.

4.  It appears that the applicant did sustain a laceration on his right foot; however, he did not sustain this laceration until 23 June 1967 and not in February 1967 as the applicant suggested.  The record shows that the applicant received a Tetanus shot at the time he was being treated for his laceration; however, there is no indication in what appears to be a chronological record of medical treatment that the laceration was caused as a result of enemy activity.

5.  The SF 88 and 89 that were prepared at the time of the applicant's separation physical examination and which are on file in his service record have no entry to indicate he was wounded as a result of enemy activity while he served in Vietnam.
6.  Based on the evidence in this case, the applicant is not entitled to award of the Purple Heart and to have it added to his DD Form 214.

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)                                         AR20090005048





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ABCMR Record of Proceedings (cont)                                         AR20090005048



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