IN THE CASE OF:	  

		BOARD DATE:	  17 September 2009

		DOCKET NUMBER:  AR20090008417 


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, that he was wounded in the Republic of Vietnam (RVN), but was not awarded the PH.   

3.  The applicant provides a military driver's license 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 27 January 1971, and was trained in and awarded military occupational specialty (MOS) 64C (Motor Transport Operator).  

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 19 July 1971 through 13 November 1971, at which time he departed absent without leave (AWOL) from his unit in the RVN. He was dropped from the rolls of the organization on 18 October 1971, and remained away until 11 April 1972, when he returned to military control at the Personnel Control Facility (PCF), Fort Riley, Kansas.  

4.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows that while he was in the RVN, he was assigned to the 597th Transportation Company, performing duties in MOS 64C as a motor transportation operator.  Item 40 (Wounds) of the applicant's DA Form 20 is blank and the PH is not included in the list of awards contained in item 41 (Awards and Decorations).  

5.  The applicant's official military personnel file (OMPF) is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority or that show he was ever wounded in action while serving in the RVN.  The OMPF is also void of any medical treatment records that show he was ever treated for a combat related wound while serving in the RVN.

6.  On 19 May 1972, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  The DD Form 214 he was issued at the time shows he completed a total of 10 months and 8 days of creditable active military service and that he accrued 165 days of time lost due to AWOL.  The DD Form 214 does not include the PH in the list of awards contained in item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized).  

7.  During the processing of this case, a member of the Board staff reviewed the Department of the Army Vietnam Casualty Reference Name Listing.  There is no entry pertaining to the applicant on this roster. 

8.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-8 contains guidance on 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 it required treatment by military medical personnel, and a record of this treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been awarded the PH because he was wounded in action in the RVN was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  Item 40 of the applicant's DA Form 20 is blank and the PH is not included in the list of awards contained in item 41, which indicates he was never wounded in action or awarded the PH.  There are no orders or other documents on file in his record that indicate he was ever recommended for or awarded the PH by proper authority.  Further, his record is void of any medical treatment records that indicate he was ever treated for a combat related wound by military medical personnel while serving in the RVN.  In addition, the PH is not included in the list of awards contained on his DD Form 214 and his name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  As a result, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  

3.  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)                                         AR20090008417



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ABCMR Record of Proceedings (cont)                                         AR20090008417


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