IN THE CASE OF:	  

		BOARD DATE:	         23 July 2009

		DOCKET NUMBER:  AR20090005252 


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 for his service in the Republic of Vietnam.

2.  The applicant states that he worked with the South Vietnamese and records were not kept as correctly as they could have been.  He states his DD Form 214 (Armed Forces of the U.S. Report of Transfer or Discharge) was recently corrected by DD Form 215 (Correction to DD Form 214) to show all his awards and service medals, but that it did not include award of the Purple Heart.  

3.  The applicant provides copies of his DD Form 214 with a separation date of 3 December 1971; a DD Form 215, dated 2 September 2008; and four letters of support 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 military personnel record shows he enlisted in the Regular Army on 23 December 1968.  He successfully completed basic combat and advanced individual training.  He was awarded the military occupational specialty 11C (Infantry Indirect Fire Crewman). 

3.  The applicant was assigned to U.S. Army Headquarters, Republic of Vietnam, Military Assistance Command from 19 April 1971 to 3 December 1971.

4.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not contain an entry to show the applicant was wounded.  

5.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not show award of the Purple Heart.

6.  On 3 December 1971, the applicant was released from active duty.  Records show he completed 2 years, 11 months, and 11 days of active service characterized as honorable and that he served in the Republic of Vietnam for 7 months and 25 days.

7.  Item 24 (Decorations, Medal, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214, which he authenticated in his own hand, does not show award of the Purple Heart.

8.  The applicant’s name is not listed on the Vietnam Casualty Roster as being wounded and receiving medical treatment during his service in the Republic of Vietnam. 

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

10.  Review of the Awards and Decorations Computer-Assisted Retrieval System, 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, failed to reveal any orders awarding the applicant the Purple Heart.

11.  On 2 September 2008, the applicant’s DD Form 214 with a separation date of 3 December 1971 was corrected to show award of the Bronze Star Medal with “V” Device with One Oak Leaf Cluster and the Army Commendation Medal with “V” Device.  

12.  On 18 September 2008, the Military Awards Branch of the U.S. Army Human Resources Command wrote the applicant’s Congressman stating the applicant’s discharge document would be updated to show all his awards, service medals, and military badges awarded.  The Chief of the Military Awards Branch stated, in effect, that the applicant’s official military records did not contain evidence to support the applicant’s request for award of the Purple Heart.  The letter provided policy guidance stating that official documented medical treatment records, casualty reports or unit morning reports were required to award the applicant the Purple Heart.  A search of the Vietnam Casualty Report, his personnel record, or military medical record did not support awarding the applicant the Purple Heart as no injuries or wounds were sufficiently documented to support the applicant’s inquiry. 

13.  The applicant provides four letters of support from Veterans who served with him in the Republic of Vietnam.  The first Veteran, the applicant’s former company commander, states in effect that the applicant was wounded on 17 August 1971 during combat operations.  He observed the wounds when the applicant returned from a combat operation which was hit by intense enemy fire.  The company commander states he assumed that the applicant received his Purple Heart when he was awarded the Bronze Star Medal with “V” Device for his heroic actions. 

14.  The second Veteran states, in effect, that he remembers the day that the applicant was wounded.  The applicant had just taken over responsibilities for the team from him and the applicant was on his first team mission.  The second Veteran states he was in the tactical operations center when the reports of enemy contact and fire fight at the landing zone were radioed into the center.  The applicant reported two members of his team were wounded and requested immediate evacuation from the landing zone.  He states the unit medic treated the applicant and other team members when they returned to the base camp. 

15.  The third Veteran states, in effect, that the applicant was awarded the Bronze Star Medal for Heroism for valorous actions during a fire fight with enemy forces.  He states he was on the second helicopter entering the landing zone when the applicant waived the helicopter off.  The pilot diverted and the third Veteran and his teammates returned fire in support of the applicant’s team that was under heavy attack by enemy forces.  He states he saw a large explosion on the ground near the applicant and that the applicant received wounds to his arm and leg on 17 August 1971.  The Veteran asserts that the 5th Special Operations Group headquarters located a significant distance from his base did not enter wounds or injury information in Soldiers personnel files.  

16.  The fourth Veteran states, in effect, that he was on the compound when the applicant’s helicopter returned after a fire fight with enemy forces at a landing zone.  He states he saw the applicant covered in the blood of his Vietnamese interpreter and that the applicant had shrapnel wounds.  He states that their unit did not maintain good medical records and often Soldiers would not seek medical treatment.  

17.  Army Regulation 672-5-1 (Military Awards), then in effect, provides, in pertinent part, that the Purple Heart is awarded to any member of an Armed Force or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. armed services has been wounded, killed, or who has died as a result of 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 a medical officer, and the medical treatment must have been made a matter of official record.

18.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9 of the version in effect at the time, provided, in pertinent part, that a brief description of wounds or injuries (including injury from gas) requiring medical treatment that was received through hostile or enemy action, including those requiring hospitalization would be entered in item 40 (wounds) of the 
DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in item 40.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, through his Congressman, that he should be awarded the Purple Heart for injuries he received during combat operations in the Republic of Vietnam. 

2.  Item 40 of the applicant’s DA Form 20 does not show an entry for wounds requiring medical treatment and incurred through hostile or enemy action.  In the absence of military and medical records showing that the applicant was wounded and treated for wounds resulting from hostile action, there is insufficient evidence upon which to base award of the Purple Heart.

3.  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, specifically documented medical evidence from military medical personnel of the Armed Forces who provided medical treatment to the applicant for his combat related injuries that would satisfy award of the Purple Heart.

4.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices and heroic actions 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)                                         AR20090005252



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ABCMR Record of Proceedings (cont)                                         AR20090005252



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