IN THE CASE OF:
BOARD DATE: 15 September 2009
DOCKET NUMBER: AR20090007171
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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 3 March 1969 to show award of the Purple Heart.
2. The applicant states, in effect, that his flak jacket caused him to receive a lower back injury that resulted in him being evacuated for medical treatment. The applicant further states that in April 1969 he was awarded the Purple Heart by his company commander in Saigon, Republic of Vietnam.
3. The applicant provides his DD Form 214 and a Standard Form 519A (Radiographic Report), dated 27 March 1968.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 7 June 1966 and successfully completed basic training and advanced individual training. He was awarded military occupational specialty 13B (Field Artillery Basic).
3. The applicant arrived in Vietnam and was assigned to Battery C, 6th Battalion, 77th Field Artillery, 25th Infantry Division, on 5 March 1968.
4. The applicant provided a radiographic report, dated 27 March 1968. The document shows that an x-ray examination was performed on his lower back that revealed a negative x-ray result.
5. The applicant departed Vietnam on 27 February 1969. On 3 March 1969, he was honorably released from active duty and transferred to the U.S. Army Reserve (Control Group).
6. Item 24 (Decoration, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 for the period ending 3 March 1969 does not show award of the Purple Heart.
7. Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not show the applicant was wounded and item 41 (Awards and Decorations) does not show award of the Purple Heart.
8. There are no general orders in the applicants service personnel records that show he was awarded the Purple Heart. There also is no evidence in his service personnel records that show he was wounded or treated for wounds as a result of hostile action in Vietnam. The applicant's name is not listed on the Vietnam casualty roster.
9. During the processing of this case, a member of the Boards staff reviewed the Awards and Decorations Computer Assisted Retrieval System maintained by the Military Awards Branch of the United States 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 orders for the applicant showing award of the Purple Heart.
10. The applicant's Army medical treatment records are unavailable.
11. 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, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. There are no orders in the applicant's service personnel records that show he was awarded the Purple Heart. There is no evidence in the available records and the applicant has not provided evidence that shows his injury was a result of hostile action. The radiographic report submitted by the applicant shows an
x-ray examination revealed a negative x-ray for his lower back. Furthermore, the document did not mention that the injury was sustained as a result of hostile action.
2. In the absence of military records which show the applicant was injured as a result of hostile action, there is an insufficient basis for 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.
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