IN THE CASE OF:	

		BOARD DATE:	13 August 2009    

		DOCKET NUMBER:  AR20090005093 


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 the Purple Heart (PH) 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 medically evacuated (MEDEVACED) from the Republic of Vietnam (RVN) to Japan for 30 days, and then on to Madigan Army Hospital (MAH), Tacoma, Washington, where he remained until his release from active duty (REFRAD).  He claims he did not receive all of his paperwork at the time of discharge.  

3.  The applicant provides no documentation 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 11 February 1969.  It also shows he was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 8 July 1969 through 3 July 1970.  Item 38 (Record of Assignments) shows that during his RVN tour he was assigned to Company D, 2nd Battalion (Airmobile), 502nd Infantry Regiment, performing duties in MOS 11B as a rifleman.  Item 38 also shows the applicant entered a patient status at the 249th General Hospital, Japan on 26 June 1970, and at MAH on 3 July 1970.

4.  Item 40 (Wounds) of the applicant's DA Form 20 is blank.  Item 41 (Awards and Decorations) shows he earned the following awards during his active duty tenure:  National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), Air Medal (AM), Combat Infantryman Badge (CIB), Army Commendation Medal (ARCOM), RVN Campaign Medal (RVNCM), 2 Overseas Bars, Army Good Conduct Medal (AGCM), Expert Marksmanship Qualification Badge (Rifle M-14 and M-16), and Sharpshooter Marksmanship Qualification Badge with Machinegun Bar.  Item 41 does not include the PH as an authorized award.

5.  The applicant's record is void of any orders or other documents that indicate he was recommended for or awarded the PH by proper authority while serving on active duty.  It is also void of any medical treatment records or documents indicating he was treated for a wound as a result of enemy action.

6.  On 10 February 1971, the applicant was honorably REFRAD after completing 2 years 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 shows he earned the NDSM, AM, ARCOM, AGCM, RVNCM, VSM, CIB, Expert Marksmanship Qualification Badge (Rifle M-14 and M-16), and 2 Overseas Service Bars.  The PH is not included in the list of awards contained in item 24 and the applicant authenticated the DD Form 214 with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his REFRAD.

7.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant's name was not included on this list.  Additionally, there were no PH orders for the applicant listed on 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.  

8.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to support award of the PH there must be evidence showing that the wound for which the award is being made was received as a result of enemy action, that it was treated by medical personnel, and a record of this treatment must have been made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was awarded the PH and it should be added to the list of awards on his DD Form 214 was carefully considered.  However, there is insufficient evidence to support this claim. 

2.  By regulation, in order to support award of the PH, there must be evidence confirming that the wound for which the award is being made was received as a result of enemy action that it required treatment by military medical personnel, and a record of this treatment must have been made a matter of official record.  

3.  Although the applicant's DA Form 20 contains entries confirming he was MEDEVACED from the RVN and hospitalized in Japan and at MAH, there are no medical treatment records on file that indicate the basis for his hospitalization was a combat-related wound or injury.  In addition, item 40 of his DA Form 20 is blank, and the PH is not included in the list of awards shown in item 41 of his DA Form 20.

4.  The applicant's record is also void of any orders or other documents and he has failed to provide any that show he was ever recommended for or awarded the PH by proper authority, or that show he was ever treated for a combat-related wound by military medical personnel.  

5.  Additionally, his name is not included on the Vietnam Casualty Roster, which is the official DA list of RVN battle casualties and there are no PH orders for him in the ADCARS file.  Therefore, absent documentary evidence confirming he was wounded in action or treated for a combat related wound the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.

6.  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.


7.  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 him 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)                                         AR20090005093



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ABCMR Record of Proceedings (cont)                                         AR20090005093


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