IN THE CASE OF:	  

		BOARD DATE:	        25 August 2009

		DOCKET NUMBER:  AR20090006064 


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, award of the Purple Heart (PH).

2.  The applicant states, in effect, that he was injured by a rocket during an enemy encounter northeast of Saigon in the province of Tay Ninh.

3.  The applicant provides a Department of Veteran Services letter, dated 23 March 2009, which served as a cover letter forwarding his application in support of his request.  

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 initially inducted into the Army and  entered active duty in an enlisted status on 20 December 1965, and was trained in and awarded military occupational specialty (MOS) 11F (Infantry Operations and Intelligence Specialist).  He successfully completed Officer Candidate School (OCS) and was honorably discharged from his enlisted status in order to accept a commission on 7 February 1967, and on 8 February 1967, he was commissioned an infantry second lieutenant and remained on active duty in that status.  

3.  The applicant’s Officer Qualification Record (DA Form 66) shows that he served in the Republic of Vietnam (RVN) from 21 August 1967 to 22 August 1968.  Item 21 (Awards and Decorations) does not include the PH in the list of earned awards entered, and the applicant last audited this record on 24 September 1968.  

4.  The applicant's record is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty.  The record also does not include medical treatment records that indicate he was ever treated for a combat-related wound or injury while serving in the RVN. 

5.  On 7 February 1969, the applicant was honorably released from active duty (REFRAD), in the rank of first lieutenant, after completing a total of 3 years, 1 month, and 18 days 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 does not include the PH in the list of earned awards entered.  

6.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  There was no entry pertaining to the applicant on this list of RVN casualties.

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


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to be awarded the PH was carefully considered.  However, by regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that the wound required treatment by medical personnel, and a record of this medical treatment must have been made a matter of official record. 

2.  The evidence of record fails to corroborate the applicant's claim that he was wounded in action in the RVN.  Item 21 of his DA Form 66 does not include the PH in the list of awards entered and the applicant last audited this record on
28 September 1968, a month after his departure from the RVN.  Further, item 24 of his DD Form 214 also does not include the PH in the list of earned awards, which indicates he had not been awarded the PH prior to his REFRAD in February 1969, nearly 6 months after his departure from the RVN.  Further, there are no orders or other documents on file in his record that indicate he was ever recommended for or awarded the PH by proper authority while he remained on active duty, or that show he was ever treated for a combat related wound while he was serving in the RVN.  

3.  Finally, the applicant's name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  Therefore, absent any evidence of record confirming the applicant was ever wounded in action, or treated for a combat related wound or injury he received as a result of enemy action, or that he was ever recommended for or awarded the PH by proper authority while serving on active duty, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Therefore, it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to grant the requested relief in this case.  

4.  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 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)                                         AR20090006064



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090006064



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1