IN THE CASE OF:	

		BOARD DATE:	17 September 2009    

		DOCKET NUMBER:  AR20090006271 


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 be added to his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge.

2.  The applicant states, in effect, he was awarded the Purple Heart and it was probably not listed on his DD Form 214 as a possible oversight. 

3.  The applicant provides no additional 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 records show he was inducted into the Army of the United States in pay grade E-1 on 12 December 1968.  He completed basic combat and advanced training and was awarded the military occupational specialty 11B, light weapons infantryman.  He served in Vietnam from 14 December 1969 through 4 December 1970.

3.  The applicant was honorably released from active duty in pay grade E-5 on 13 November 1970 under the provisions of Army Regulation 635-200, for early separation as an overseas returnee.  He was transferred to the United States Army Reserve Control Group (Annual Training).  He was credited with 1 year, 11 months, and 2 days active military service.

4.  The applicant's DA Form 20, Enlisted Qualification Record, Item 38 (Record of Assignments), shows he was medically evacuated to the 249th General Hospital in a patient status on 27 February 1970.  A Standard Form 502 (Clinical Record – Narrative Summary) shows on 2 March 1970, he was admitted to the 93rd Evacuation Hospital with the chief complaint of being allergic to malaria pills.  Upon observation the allergy was not confirmed and on 11 March 1970 he was returned to duty without a profile.  The applicant's medical evacuation from Vietnam was for the purpose of diagnosing a medical problem and not for the treatment of a wound sustained in combat.  Following diagnosis and treatment, the applicant was returned to duty in Vietnam.

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, the Army Commendation Medal, the Combat Infantryman Badge, the Bronze Star Medal, and the Air Medal.  The Purple Heart is not shown on his DD Form 214.

6.  There is no entry in Item 40 (Wounds) of the applicant's DA Form 20 showing he was wounded in action as a result of hostile enemy action.  Item 41 (Awards and Decorations), of his DA Form 20 contains no entry showing he was awarded the Purple Heart.

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

8.  The Vietnam Casualty List was reviewed to determine if the applicant had been wounded in action while he served in Vietnam.  The applicant's name is not shown in this list.

9.  A search of the Awards and Decorations Computer-assisted Retrieval System (ADCARS) was made for orders awarding the applicant the Purple Heart.  No orders for this award were found in the ADCARS.

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 the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.  This regulation also provides that there is no statute of limitations on requests for award of the Purple Heart.

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 action.  The applicant's name does not appear on the Vietnam Casualty Listing.  There were no entries made in his service personnel records to show he was wounded as a result of hostile action and no orders were published to award him the Purple Heart.

3.  The evidence does show that the applicant was medically evacuated from Vietnam; however, the evidence also shows the purpose was for diagnosis and treatment of a medical condition. 

4.  Based on the evidence in this case, the applicant is not entitled to have the Purple Heart 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)                                         AR20090006271



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ABCMR Record of Proceedings (cont)                                         AR20090006271



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