BOARD DATE:	  1 September 2009

		DOCKET NUMBER:  AR20090006778 


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 he believes he should have received award of the PH.  He states that in November 1968 while serving in the Republic of Vietnam (RVN) he sustained a cut to his back which got infected and he was sent to be seen by a doctor in Chu Chi, in the RVN.

3.  The applicant provides no 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 record shows he was initially inducted into the Army of the United States and entered active duty on 27 March 1968, and that he served for a period of 6 days until being honorably discharged on 1 April 1968 for the purpose of immediate enlistment in the Regular Army (RA).

3.  On 2 April 1968, the applicant enlisted in the RA for a period of three years.  
His record shows he was trained in and awarded military occupational specialty (MOS) 45K (Tank Turret Repairman). 

4.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 15 September 1968 through 16 January 1969.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Battery D, 3rd Battalion, 13th Artillery, 25th Infantry Division performing duties in MOS 45G as a Turret Artillery Mechanic.

5.  Item 40 (Wounds) of the applicant's DA Form 20 is blank and item 41 (Awards and Decorations) shows he earned the National Defense Service Medal (NDSM) and Vietnam Service Medal (VSM).  Item 41 does not include the PH in the list of authorized awards entered.  Item 48 (Date of Audit) shows the applicant last audited the DA Form 20 on 22 March 1971, subsequent to his completing his RVN tour.  

6.  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.  It is also void of any medical treatment records or documents indicating he was ever treated for a wound he received as a result of enemy action.

7.  On 1 April 1971, the applicant was honorably released from active duty (REFRAD) after completing 3 years of active military service.  Item 24 of the 
DD Form 214 he was issued at the time shows he earned the VSM and NDSM.  The PH is not included in the list of awards contained in item 24 and the applicant authenticated the DD Form 214 with his signature in item 32 (Signature of Person Being Transferred or Discharged) on the date of his REFRAD.

8.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant's name was not included on this list.  Additionally, a review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), 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 PH for the applicant.
9.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to support award of the PH there must be evidence showing that the wound for which the award is being made was received as a result of enemy action, that it was treated by medical personnel, and a record of this treatment must have been made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the PH based on a wound (cut) he sustained to his back was carefully considered. However, by regulation, accidents or accidental wounding not related to or caused by enemy action clearly do not justify award of the PH.  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 and accidents not . 

2.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action, and the PH is also not included in the list of awards contained in Item 41.  Further, his OMPF 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, or of medical treatment records that indicate he was ever treated for a combat-related wound or injury.  Finally, his name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  As a result, absent any evidence of record confirming the applicant was wounded in action or treated for a combat-related wound while serving in the RVN, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case

3.  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 related to award of the PH.   

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)                                         AR20090006778



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ABCMR Record of Proceedings (cont)                                         AR20090006778



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