IN THE CASE OF:	  

		BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090007290 


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 he underwent surgery for a right shoulder injury at Fort Devens, MA in the spring of 1968.  He states he was injured in March of 1968 by incoming enemy rocket/mortar fire.  He states he was given a Purple Heart while in the hospital but no citation.  He states his service medical records should verify that he received treatment for his right shoulder.

3.  The applicant provides, in support of his application, copies of the current criteria for award of the Purple Heart taken from Army Regulation 600-8-22 and Public Law 104-106, dated 10 February 1996.

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 military personnel records show he enlisted in the Regular Army (RA) on 17 July 1967 for a period of 3 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 44E (Machinist).

3.  On 2 April 1968, the applicant was assigned to the 578th Light Equipment Maintenance Company in the Republic of Vietnam.

4.  On 13 May 1968, the applicant was treated for a dislocated right shoulder and referred to the 22nd Surgical Hospital.  The record of treatment states he has a history of recurrent dislocation.

5.  A Standard Form (SF) 513 (Clinical Record - Consultation Sheet), dated
15 May 1968, refers the applicant to the 22nd Surgical Hospital.  The reason for referral was stated to be a history of recurrent dislocation of his right shoulder with the latest episode on 13 March [1968].  The 22nd Surgical Hospital referred the applicant to the 95th Evacuation Hospital for evacuation due to recurrent dislocation of his right shoulder.

6.  A DA Form 8-275-3 (Clinical Record Cover Sheet) shows the applicant was admitted on 16 May 1968 to the 95th Evacuation Hospital with a diagnosis of recurrent dislocation of his right shoulder.  Item 34 (Additional Remarks) of this form contains the following three pre-stamped questions which were not answered.

   a.  "Were you injured as result of hostile action?"
   
   b.  "If so, what award of the Purple Heart are you eligible for; 1st, 2nd, 3rd, 4th, other."
   
   c.  "Have you received the Purple Heart for this wound?"

7.  An SF 502 (Clinical Record - Narrative Summary), dated 21 May 1968, completed by the 7th Field Hospital, shows the applicant was admitted from the 95th Evacuation Hospital.  The narrative summary states the applicant had a
2-year history of recurrent dislocation of his right shoulder.  The narrative summary states the present episode which began approximately 1 week prior to admission was the 4th occurrence within the past 2 years.  The narrative summary provides a diagnosis of recurrent dislocation of the right shoulder and recommended evacuation to the continental U.S. for elective repair of his right shoulder.

8.  On 26 May 1968, the applicant was transferred to the U.S. Army Hospital (USAH) at Fort Devens.  A narrative summary prepared by the USAH stated the applicant had a 2-year history of chronic dislocations of his right shoulder with the last occurrence on 13 March 1968, while he was in the Republic of Vietnam.  The narrative summary stated the applicant's feet became entangled in some wire and he fell, dislocating his right shoulder anteriorly.

9.  On 7 June 1968, the applicant was taken to surgery where a repair of his right shoulder was accomplished.  He was returned to duty on 26 August 1968.  On
5 September 1968, he was assigned to Headquarters and Maintenance Support Company, 198th Maintenance Battalion at Fort Knox.

10.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not contain any entries indicating that the applicant received any wounds during his tenure of service.

11.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not show the award of the Purple Heart.

12.  On 16 July 1970, the applicant was honorably released from active duty due to the expiration of his term of service and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  He had completed 3 years of creditable active service.

13.  Item 24 of the applicant's DD Form 214 does not show the award of the Purple Heart.

14.  There are no orders in the applicant's military service records awarding him the Purple Heart.

15.  The applicant's name does not appear on the Vietnam casualty listing.

16.  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 pertaining to the applicant.

17.  U.S. Army, Vietnam (USARV) Regulation 672-1 (Decorations and Awards), then in effect, provided, in pertinent part, for award of the Purple Heart.  The regulation stated that authority to award the Purple Heart was delegated to hospital commanders.  Further, it directed that all personnel treated and released 
within 24 hours would be awarded the Purple Heart by the organization to which the individual is assigned.  Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam would be awarded the Purple Heart directly by the hospital commander rendering treatment.

18.  Army Regulation 672-5-1 (Military Awards), then in effect, provided, in pertinent part, that the Purple Heart was awarded to any member of an Armed Force or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. armed services had been wounded, killed, or who had died as a result of 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 a medical officer, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the applicant's official military personnel file showing his right shoulder condition was the result of hostile action.  The medical records available for review, while thoroughly documenting his treatment and surgery on his right shoulder, make no mention that his injury was the result of hostile action.  

2.  In this case, the responsibility for issuing orders for the award of the Purple Heart would have rested with the hospital commander who determined the applicant was to be evacuated from Vietnam in accordance with USARV Regulation 672-1.  However, there is no evidence that orders for award of the Purple Heart were issued by the hospital commander of the 7th Field Hospital.  The narrative summary from the 7th Field Hospital specifically stated the applicant had a 2-year history of recurrent dislocation of his right shoulder.  Therefore, there is no evidence the applicant's current injury was as a result of hostile action.

3.  The preponderance of evidence in this case shows the applicant's recurrent dislocation of his right shoulder was not a result of hostile action.  Therefore, there is insufficient evidence upon which to base award of the Purple Heart in this case.

4.  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 that requirement.


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)                                         AR20090007290



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ABCMR Record of Proceedings (cont)                                         AR20090007290



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