BOARD DATE:	  10 December 2009

		DOCKET NUMBER:  AR20090007900 


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 and that it be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  

2.  The applicant states he received shrapnel wound to his right leg while he was engaging an armed enemy during an aerial flight near Tuy Hoa, Vietnam in or about January 1966 “Operation Van Buren.”  He contends he was wounded in the same way as a staff sergeant of the 48th Aviation Company and he was treated by the company flight surgeon.  

3.  The applicant provides a copy of a letter from the Veterans Administration (VA), Regional Office, St. Petersburg, FL, dated 3 November 1967, 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 enlisted in the Regular Army on 5 August 1964.  He completed training as a firefighter and the highest grade he attained was specialist four/E-4.  

3.  He served in Vietnam from 5 November 1965 through 16 May 1967 while assigned to the 48th Aviation Company, 10th Aviation Battalion.  

4.  The applicant’s Standard Form 88 (Report of Medical Examination), dated 
17 May 1967, shows he indicated in Block 39 (Identifying Body Marks, Scars, Tattoos) that he had a battle mark on his right side.  This medical document does not indicate that he received this mark as a result of hostile action.  

5.  His DA Form 20 (Enlisted Qualification Record) does not list the Purple Heart in item 41 (Awards and Decorations).

6.  There are no orders in the applicant's personnel records which show he was awarded the Purple Heart.  His DA Form 20 (Enlisted Qualification Record), item 20 (Wounds) does not list any wounds as a result of hostile action.  His name is also not included on the Vietnam Casualty Roster.  

7.  The applicant was separated on 17 May 1967.  His DD Form 214 does not show entitlement to award of the Purple Heart.

8.  The applicant provided a letter, dated 3 November 1967, from the VA which indicates he was granted service connection for scars from a shell fragment wound on his right leg and arm with a zero percent disability rating.  

9.  Army Regulation 600-8-22 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.  Paragraph 2-8b(2) states that for the purpose of considering an award of the Purple Heart, a “wound” is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of 




such enemy.  The regulation states that the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The 
fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.  

10.  Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he received shrapnel wound to his right leg during an aerial flight near Tuy Hoa, Vietnam and he was treated by a company flight surgeon.  However, the available evidence is insufficient to confirm he sustained a wound as a result of hostile action in Vietnam.  

2.  There are no orders available which authorized the applicant award of the Purple Heart and his name is not listed on the Vietnam Casualty Roster.  

3.  By regulation, in order to award the Purple Heart it is necessary to establish that a Soldier was wounded in action, the wound must have required treatment by medical personnel, and the treatment must have been made a matter of official record.  

4.  The applicant’s medical documents were carefully reviewed.  However, they do not verify that the applicant was wounded or injured as a result of hostile action.  

5.  The 3 November 1967 letter from VA which indicated the applicant was granted service connection (zero percent) for scars from a shell fragment wound on his right leg and arm is acknowledged.  However, the rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  

6.  In the absence of any other corroborating evidence of record which shows the applicant was wounded or injured as a result of hostile action, there is insufficient evidence upon which to base 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.

ABCMR Record of Proceedings (cont)                                         AR20090007900



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090007900



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1