IN THE CASE OF:	  

		BOARD DATE:	  8 October 2009

		DOCKET NUMBER:  AR20090008443 


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) to show award of the Purple Heart.

2.  The applicant states that he was wounded in June 1969 in the Republic of Vietnam.  He adds that he was assigned to the 4th Infantry Division in the central highlands of Vietnam, nearly 40 kilometers north of Pleiku.  His unit was camped out overnight and he was on perimeter duty when he and his squad received 
.50 caliber machinegun fire that injured several members including himself.  He was wounded due to heat flash and shrapnel to the left side of his face and head. He also suffered the loss of hearing in his left ear.  He was subsequently transported to Pleiku where medical personnel removed the shrapnel and treated his ear.  He went back and forth to the hospital several times and was ultimately awarded the Purple Heart on 1 September 1969.  

3.  The applicant provides a copy of his DD Form 214, dated 12 January 1970; a copy of a certificate, dated 1 January 1970, showing award of the Army Commendation Medal; and a copy of a certificate, dated 31 March 1969, showing award of the Combat Infantryman Badge, in support of his request.

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 records show he was inducted into the Army of the United States and entered active duty on 6 March 1968.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was honorably released from active duty in the rank/grade of staff sergeant/E-6 on 12 January 1970 and transferred to the U.S. Army Reserve Control Group (Annual Training) for completion of his Reserve obligation.

3.  The applicant’s records show he served in the Republic of Vietnam from on or about 12 January 1969 to on or about 11 January 1970.  He was assigned to Company A, 2nd Battalion, 8th Infantry, 4th Infantry Division. 

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, the Army Commendation Medal, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and two overseas service bars.  Item 24 does not show award of the Purple Heart.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) contains no entry.  

6.  The applicant's name is not shown on the Vietnam casualty roster and there are no general orders in his records that show he was awarded the Purple Heart.

7.  During the processing of this case, a member of the Board’s 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 Purple Heart orders on file for the applicant.  


8.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.  The applicant contends that he should be awarded the Purple Heart.  

2.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather an individual is entitled to it upon meeting a specific criteria.  When contemplating an award of this decoration, the key issue that must be taken into consideration is the degree to which the enemy caused the injury.  The fact that a proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but it is not the sole justification for the Purple Heart.

3.  There are no general orders that show the applicant was awarded the Purple Heart; there is no evidence in his service personnel records that shows he was wounded, or injured as a result of hostile action, or treated for such wounds; and his name is not shown on the Vietnam casualty roster.  In the absence of documentation that shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base adding of the Purple Heart to his DD Form 214.

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)                                         AR20090008443



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ABCMR Record of Proceedings (cont)                                         AR20090008443



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