BOARD DATE:	  10 September 2009

		DOCKET NUMBER:  AR20090006817 


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, he was wounded in action several times while serving in the Republic of Vietnam (RVN).

3.  The applicant provides a Department of Veterans Affairs (VA) Rating Decision, dated 5 October 2007, 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 enlisted in the Regular Army and entered active duty on 10 April 1967.  He was awarded and served in military occupational specialty (MOS) 11B (Light Weapons Infantryman).  On 18 November 1969, the applicant was honorably discharged after serving 2 years, 7 months, and 9 days of active service.

3.  On 19 November 1969, the applicant immediately reenlisted for a period of 6 years.  His record further shows he was promoted to sergeant/pay grade E-5 on 13 May 1970 and that this is the highest rank/grade he held and served in while on active duty.

4.  The applicant's DA Form 20 (Enlisted Qualification Record) shows that he served in the RVN from 3 December 1967 through 25 July 1969 and from 9 October 1969 through 8 May 1971.  Item 38 (Record of Assignments) shows that during his first RVN tour he was assigned to Company C, 2d Battalion (Airborne), 506th Infantry Regiment.  Item 38 also shows that during his second RVN tour he was assigned to Company A, 1st Battalion, 6th Infantry Regiment, 198th Infantry Brigade, from 28 October 1969 through 25 November 1969 and the 300th Military Police Company from 26 November 1969 through 30 September 1970, performing duties in MOS 95B (Military Police).

5.  Item 40 (Wounds) of the applicant's DA Form 20 is blank and item 41 (Awards and Decorations) does not include the PH in the awards listed.  His record is void of any orders or other documents that show he was ever recommended for or awarded the PH by proper authority, or of any medical treatment records that show he was treated for a combat-related wound by medical personnel.

6.  The applicant's DA Form 20 also shows that he left the RVN enroute to Germany on 8 May 1971.  He served in Germany from 23 June 1971 through 8 November 1973.

7.  On 9 November 1973, the applicant was honorably discharged in the rank of sergeant after completing a total of 6 years and 7 months of active military service.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he earned the following awards during his active duty tenure:  the National Defense Service Medal, the Army Good Conduct Medal, the Combat Infantryman Badge, the Bronze Star Medal, the Parachutist Badge, the Army Commendation Medal, seven overseas service bars, the Vietnam Service Medal, the RVN Campaign Medal with Device (1960), the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), the Expert Marksmanship Qualification Badge with Rifle Bar (M-16) and Pistol Bar (.38 Caliber), and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-14).  The PH is not included in the list of awards contained on the DD Form 214.

8.  The applicant provides a copy of a VA Rating Decision dated 5 October 2007, in support of his application.  This document shows that the applicant was granted a 90-percent combined disability rating from the VA.

9.  During the processing of this case, a member of the Board staff reviewed the Department of the Army Vietnam casualty roster.  No entry pertaining to the applicant was found on this list of RVN casualties.

10.  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.

11.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to the PH based on being wounded in action in the RVN 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.  In regard to the VA rating decision document submitted by the applicant in support of his application, the document does not show that the injury he received was as a result of hostile action.

3.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action.  His 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, and it contains no medical treatment records that indicate he was ever treated for a combat-related wound while serving in the RVN.

4.  Finally, the applicant's name is not included on the Vietnam casualty roster.  Absent any evidence of record confirming the applicant was wounded in action and/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.

5.  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)                                         AR20090006817



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ABCMR Record of Proceedings (cont)                                         AR20090006817



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