BOARD DATE:	  1 September 2009

		DOCKET NUMBER:  AR20090005941


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 he be awarded the Purple Heart.

2.  The applicant states he was a sniper assigned to the 1st Battalion, 2nd Infantry, 1st Infantry Division in Vietnam.  On 4 March 1970, he was on a reconnaissance mission when his unit was brought under fire.  The unit suffered one killed in action (KIA) and three wounded in action (WIA); he was one of the WIA.  He states he never got his Purple Heart and today he is 100% disabled.  He believes his Purple Heart paperwork got lost because he was transferred to the 1st Battalion, 506th Infantry shortly after being wounded.

3.  The applicant provides no additional documentation.

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 was a 2-year draftee serving from 27 March 1969 to 26 March 1971.  He was trained as a light weapons infantryman and he served in Vietnam from 13 September 1969 to 13 September 1970.

3.  The applicant served in Vietnam with Company C, 1st Battalion, 2nd Infantry, 1st Infantry Division from shortly after his arrival in-country to on or about 27 October 1969.  On 28 October 1969, he was reassigned to Combat Support, 1st Battalion, 2nd Infantry, 1st Infantry Division.  On or about 23 March 1970, he was transferred out of the 1st Battalion, 2nd Infantry to the 1st Administration Company (Replacements), 1st Infantry Division for ultimate assignment to Company C, 1st Battalion, 506th Infantry from on or about 6 April 1970 until he departed Vietnam.

4.  The applicant’s records contain no orders awarding him the Purple Heart and the applicant’s name does not appear on the Vietnam Casualty Roster.

5.  During the processing of this case, a member for the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the United States Army Human Resources Command which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any award of the Purple Heart orders on file for the applicant.

6.  The applicant’s DA Form 20 (Enlisted Qualification Record) contains no entry in Item 40 (Wounds), nor does it show the Purple Heart as an authorized award in Item 41 (Awards and Decorations).

7.  The applicant’s records contain a Standard Form (SF) 600 (Health Record – Chronological Record of Medical Care) with an entry dated 6 March 1970.  The entry states:

“Blast injury to ear yesterday.  Tinnitus then but today has noted only difficulty hearing from left ear.  Right ear moves to Valsalva well.  Left ear moves to Valsalva minimally.  No perforation, bleeding, or dullness.  [Illegible] drum.”

8.  The applicant was given a 2-week profile requiring no exposure to loud noises he was advised to wear ear plugs if exposed to any loud noise, and he was to return to the clinic for an audiogram after 1 week.

9.  The applicant’s separation physical does not show he was wounded.  It does mention his temporary hearing loss in March 1970 “from a blast.”

10.  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:  (1) the wound was the result of hostile action; (2) the wound required medical treatment; and (3) the medical treatment was made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the Purple Heart.

2.  There are no orders awarding the applicant the Purple Heart and his name is not listed on the Vietnam Casualty Roster.

3.  On 6 March 1970, he visited the Aid Station complaining of tinnitus and hearing loss as a result of a “blast.”  The nature of the blast is not further described and the available SF 600 does not state the applicant was wounded.

4.  In order to qualify for award of the Purple Heart a wound must be sustained as a result of hostile action and there must be substantiating evidence to verify that the wound was the result of hostile action.  There is no evidence the applicant’s temporary hearing loss in his left ear was caused by hostile action.

5.  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.

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)                                         AR20090005941



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ABCMR Record of Proceedings (cont)                                         AR20090005941



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