IN THE CASE OF:
BOARD DATE: 6 OCTOBER 2009
DOCKET NUMBER: AR20090007359
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 that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show he was awarded the Purple Heart.
2. The applicant states that his records reflect that he received a wound to his hand while in action against enemy forces in Vietnam on 5 May 1968.
3. The applicant provides a copy of his DD Form 214 and statements and various newspaper articles and Department of Veterans Affairs (VA) documents used for his VA disability compensation claim 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 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's military records show that he was inducted in the Army of the United States on 16 August 1967, he completed the required training and he was awarded military occupational specialty (MOS) 11B (light weapons infantryman), and was advanced to the rank/grade of private first class (PFC)/E-3, which is the highest rank he held during his tenure of service.
3. He served in Vietnam as a rifleman and ammunition bearer from 13 January 1968 to 8 January 1969.
4. He was honorably released from active duty at the expiration of his term of service on 15 August 1969.
5. There are no orders awarding the applicant the Purple Heart in his military records. There are no records showing that he was wounded in action in his military records. Item 40 (Wounds) on his DA Form 20 (Enlisted Qualification Record) is blank.
6. In the support statements provided by the applicant, it was said that the applicant threw a grenade at enemy Soldiers who were firing at them from fox holes. The applicant tripped when he threw the grenade and landed next to the fox hole he threw the grenade into. While the applicant complained of hearing loss after that incident, he never sought medical attention.
7. In a self-authored statement he states that while in Vietnam, a concussion grenade exploded near him which resulted in his receiving a shrapnel wound to his hand and a ringing in his ears. The applicant states that he was not treated for his wounds.
8. Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for wounds 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:
1. There are no orders awarding the applicant the Purple Heart and there is no record of him being wounded as a result of hostile action contained in his military records.
2. The statements provided by the applicant's witnesses indicate that the applicant had ringing in his ears as a result of a grenade he threw at enemy
troops landing too close to him. No mention was made of a wound to his hand. The applicant himself states that a concussion grenade caused ringing to his ears and shrapnel wound to his hand.
3. However, both the applicant's and support statements agree that the applicant was not treated for any condition which was caused by the grenade explosion.
4. Since one of the requirements for award of the Purple Heart is treatment for the wound in question, the applicant is not entitled to the Purple Heart.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X_____ ____X____ ___X_____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the FSM in service to our Nation. The applicant and all Americans should be justifiably proud of his service in arms.
___________XXX___________
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) AR20090007359
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ABCMR Record of Proceedings (cont) AR20090007359
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