IN THE CASE OF:	  

		BOARD DATE: 	        1 July 2009

		DOCKET NUMBER:  AR20090006665 


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, in effect, that while serving as a medic in the 173rd Airborne Brigade during the summer of 1971 in Vietnam he received a shrapnel injury to his lower neck.  He contends that he was sitting on an empty mortar box writing a letter when the first enemy mortar of the day came in and that the mortar demolished his aid bag and rucksack.  He indicates that he heard his lieutenant yell at him to get into his foxhole and that as he dove into his foxhole the second mortar hit about four feet from his foxhole.  He states that he received a shrapnel injury to his lower neck as his head slammed into the wall of the foxhole and that the shrapnel wound was treated by another medic after it became infected.

3.  The applicant provides three statements from a fellow Soldier at the time in question, photographs of what appears to be a Soldier and destroyed military gear, a letter from his physician, and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 was inducted into the Army of the United States and entered active duty on 17 August 1970.  He served as a medic in Vietnam from 10 March 1971 to 3 August 1971.  He was subsequently released from active duty on 24 February 1972 and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining Reserve obligation.

3.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 does not show the Purple Heart as an authorized award.

4.  There is no evidence in the available records which shows that the applicant was awarded the Purple Heart or that he was wounded as a result of hostile action in Vietnam.

5.  The applicant's DA Form 20 (Enlisted Qualification Record) does not show entitlement to the Purple Heart and item 40 (Wounds) on his DA Form 20 is blank.  The applicant's name does not appear on the Vietnam casualty roster.

6.  On 1 February 1972, the applicant underwent a separation physical examination which makes no mention of any injuries or wounds sustained as a result of hostile action in Vietnam.  Item 18 (Head, Face, Neck, and Scalp) of his Standard Form 88 (Report of Medical Examination), dated 1 February 1972, shows he was rated normal.

7.  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 for the Purple Heart.

8.  In support of his claim, the applicant provided three statements, dated January and February 2009, from a first lieutenant at the time in question.  He recalls standing in the door of his "FDC" when they started taking incoming rounds and that he saw a medic sitting on the ground leaning on his rucksack and aid kit when a mortar round missed the medic's head by a fraction and went through his aid kit and rucksack.  He states that after it was over he learned that the medic's name was [the applicant's name] and that he took a picture of the applicant kneeling next to his destroyed aid kit and rucksack and holding the tail fin of the dud round.

9.  The applicant also provided a letter, dated 16 December 2008, from his physician.  He attests that the applicant injured his head in Vietnam while jumping into a foxhole due to mortars going off, that explosives sent shrapnel in the back of the applicant's neck and caused him to hit his head while jumping into the foxhole, and that the shrapnel was self-removed but became infected and a fellow medic cleaned and dressed the wound.

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.

DISCUSSION AND CONCLUSIONS:

There are no orders for the Purple Heart in the available records.  In the absence of orders or other evidence of record showing that the applicant was injured or treated for wounds as a result of hostile action in Vietnam, the statements and photographs provided by the applicant are not sufficient as a basis for award of the Purple Heart.  Regrettably, there is insufficient evidence on which to base award of the Purple Heart in this case.

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)                                         AR20090006665



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ABCMR Record of Proceedings (cont)                                         AR20090006665



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