IN THE CASE OF:	  

		BOARD DATE:	  1 September 2009

		DOCKET NUMBER:  AR20090006446 


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.

2.  The applicant states that he was wounded in the Republic of Vietnam from 1966 to 1967 while attached to the 1st Cavalry Division, 25th Infantry Division, 9th Infantry Division, and 11th Armored Cavalry Regiment.

3.  The applicant provides a copy of his Department of Veterans Affairs (DVA) rating decision effective 29 April 2004 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 records show he enlisted in the Regular Army for a period of 3 years on 19 August 1964.  He completed basic combat and advanced individual training and was awarded military occupational specialty 64A (Light Vehicle Driver).  He was honorably discharged on 28 August 1966 for the purpose of immediate reenlistment and executed a 3-year reenlistment on 29 August 1966.  He was honorably released from active duty in the rank of specialist five/E-5 on 8 August 1969 and transferred to the U.S. Army Reserve Control Group (Reinforcement) for completion of his Reserve obligation.

3.  The applicant’s records show he completed several periods of foreign service as follows:

	a.  he served in Germany from on or about 6 January 1965 to on or about 3 September 1966;

	b.  he served in the Republic of Vietnam from on or about 13 October 1966 to on or about 6 October 1967 and was assigned to the 556th Transportation Company; and

	c.  he served in Germany from on or about 16 June 1968 to on or about 7 August 1969.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 8 August 1969 shows he was awarded the Driver Badge, one overseas service bar, the Combat Infantryman Badge, the Marksman Marksmanship Qualification Badge with Rifle Bar, the Republic of Vietnam Campaign Medal with Device (1960), and the Vietnam Service Medal.  Item 24 does not show award of the Purple Heart.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows a blank entry.

6.  The applicant's name is not shown on the Vietnam casualty roster.

7.  There are no general orders in the applicant's records that show he was awarded the Purple Heart.

8.  The applicant's medical records are not available for review with this case.

9.  During the processing of this case, a member of the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System maintained by the Military Awards Branch of the U.S. 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 Purple Heart orders on file for the applicant.

10.  The applicant submitted a copy of his DVA rating decision that shows he was awarded service-connected disability compensation for a right ankle fracture, a shrapnel wound to his face and head, hearing loss, tinea, and a shrapnel injury to the stomach and right side.

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.

DISCUSSION AND CONCLUSIONS:

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

2.  There is no evidence in the available records that the applicant was wounded and/or injured as a result of hostile action.  Additionally, there is no evidence he was treated by medical personnel for such wound and/or injury or that the record of his medical treatment was made a matter of official record.  The DVA’s award of a service-connected disability is insufficient to justify an award of the Purple Heart.

3.  Absent evidence which conclusively shows that the applicant sustained wounds or injuries as a result of hostile action, and more particularly that he was treated by medical personnel for those wounds or injuries and that this treatment was made a matter of official record, there is an insufficient basis for awarding the Purple Heart to the applicant.

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)                                         AR20090006446



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ABCMR Record of Proceedings (cont)                                         AR20090006446



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