IN THE CASE OF:	  

		BOARD DATE:	        29 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090008616 


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 his right ear, which resulted in hearing loss, while serving in the Republic of Vietnam (RVN).  He also states that his wound was the result of friendly fire when a howitzer fired over his head and caused his ear to bleed and hearing loss occurred in that ear. He states that he was never issued the PH, but he believes he is eligible for the award based on this wound. 

3.  The applicant provides no documentary evidence 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 military record shows the applicant was inducted into the Army of the United States and entered active duty on 10 September 1968.  He was trained in and awarded military occupational specialty (MOS) 13B (Field Artillery Crewman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) includes an entry in Item 31 (Foreign Service) which shows he served in the RVN from 5 February to 1 December 1969.  Item 40 (Wounds) is blank and the PH is not included in the list of awards contained in Item 41 (Awards and Decorations).

4.  The applicant's record is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty.  The record also is void of any medical treatment records that indicate he was ever treated for a combat-related wound or injury while serving in the RVN. 

5.  On 9 September 1970, the applicant was honorably released from active duty (REFRAD) after completing a total of 2 years of active military service.  The DD Form 214 he was issued shows he was awarded the National Defense Service Medal, Army Commendation Medal, Vietnam Service Medal, Bronze Star Medal, 2 Overseas Service Bars, RVN Campaign Medal with Device 1960, and RVN Gallantry Cross with Palm Unit Citation.  The PH is not included in this list of earned awards.

6.  The applicant's military record includes an additional DD Form 214 that documents a subsequent period of active duty service from 4 August 1971 to 29 January 1976.  This document also does not show the applicant received the PH.  

7.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  There is no entry pertaining to the applicant on this list of RVN casualties.

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

9.  Paragraph 2-8b (6) (b) of the awards regulation also contains guidance on awarding the PH for friendly fire incidents.  It states, in pertinent part, that individuals wounded or killed as a result of "friendly fire" in the "heat of battle" will be awarded the PH as long as the "friendly" projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the PH for a friendly fire wound he received to his right ear while serving in the RVN was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, 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 or by friendly fire in the heat of battle as long as the "friendly" projectile or agent was released with the full intent of inflicting damage or destroying enemy troops or equipment, that the wound required treatment by medical personnel, and a record of this medical treatment must have been made a matter of official record.  In this case, the evidence of record fails to corroborate the applicant's claim that he was wounded in action by friendly fire or otherwise while serving in the RVN.  

3.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action, and the PH is not included in the list of awards contained in item 41.  Further, 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 or that he ever pursued award of the PH while he was on active duty.

4.  Finally, the applicant's name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  Therefore, absent any evidence to confirm the applicant was wounded in action by friendly fire released with the full intent of inflicting damage or destroying enemy troops or equipment while in the heat of battle or otherwise, or medical treatment records confirming he was treated for a combat related wound by military medical personnel while serving in the RVN, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case. 

5.  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.

6.  The applicant and all others concerned should know that this action related to award of the PH in no way diminishes the sacrifices made by him in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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.



      _______ _   ___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)                                         AR20090008616



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ABCMR Record of Proceedings (cont)                                         AR20090008616



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