IN THE CASE OF:	

		BOARD DATE:	22 September 2009    

		DOCKET NUMBER:  AR20090008629 


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, that the Purple Heart (PH) be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant did not specifically state he had been awarded the Purple Heart; but, implies that it was awarded through his request, "Request correct copy of DD Form 214 to reflect the PH."

3.  In support of his request, the applicant submitted a copy of a page from what appears to be a VA (Department of Veterans Affairs) Rating Decision.

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 that he enlisted in the Regular Army on 19 July 1963.  He completed basic combat training at Fort Gordon, Georgia, and his advanced individual training at Fort Polk, Louisiana.

3.  While the applicant was on an overseas tour of duty in Korea, he was honorably discharged on 20 October 1964 for the purpose of immediately reenlisting.  The applicant reenlisted on 21 October 1964 for 6 years.

4.  During his second enlistment, the applicant completed a tour of duty in Vietnam with C Battery, 1st Battalion, 30th Artillery, from 10 July 1966 through 12 July 1967.

5.  The applicant's DA Form 20, (Enlisted Qualification Record) shows he returned to Vietnam on a second tour of duty on 7 April 1969 and was assigned to A Battery, 5th Battalion, 22nd Artillery; however, the applicant did not complete this tour of duty.  Item 38 (Record of Assignments), of the applicant's DA Form 20 shows the applicant was medically evacuated to the 106th General Hospital in Japan on 3 October 1969 and was further medically evacuated to Womack Army Hospital (Special Treatment Clinic) at Fort Bragg, North Carolina, on 7 October 1969.  Following his hospitalization and treatment at Fort Bragg, the applicant was reassigned for duty in Germany.

6.  The applicant was honorably discharged on 20 January 1970 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations) for the purpose of immediately reenlisting.  The applicant reenlisted for 3 years on 21 January 1970 to continue his service in the Army

7.  The applicant was honorably discharged overseas in Germany on 20 January 1973 under the provisions of Army Regulation 635-200 at the expiration of his term of service.  The record shows he was discharged in the rank of specialist four, pay grade E-4.  On the date he was discharged, the applicant had served a total of 9 years, 6 months, and 1 day of active military service with 3 day time lost during his first enlistment.

8.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), of the applicant's DD Form 214, with an effective date of discharge of 20 January 1970, shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, the Driver and Mechanic Badge [incorrectly identified as the 1 year Driver's Badge] and 2 overseas service bars.  The Purple Heart is not shown.

9.  Item 24, of the applicant's DD Form 214, with an effective date of his discharge of 20 January 1973, shows he was awarded the Basic Missile Badge, the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, the Driver and Mechanic Badge, an overseas service bar, and the Meritorious Unit Commendations (2 awards).  The Purple Heart is not shown.

10.  No entry appears in item 40 (Wounds) of the applicant's DA Form 20 to show he was wounded in action against a hostile force while he served in Vietnam.

11.  The applicant's name does not appear on the Vietnam casualty list.  The applicant's name also does not appear on the U.S. National Archives and Records Administration's Casualty Information System which has the names of deceased, wounded, or ill or injured Army personnel, including dependents and civilian employees, recorded during the period from 1 January 1961 through December 1981.
     
12.  There is no entry in item 41 (Awards and Decorations) of the DA Form 20 showing he was awarded the Purple Heart.  There are no orders in the applicant's service records to show he was awarded the Purple Heart in Vietnam, at the 106th General Hospital in Japan, or while he was a patient at Womack Army Hospital at Fort Bragg.

13.  Review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for the Purple Heart to the applicant.

14.  A DA Form 3349 (Medical Condition - Physical Profile Record) on file in the applicant's service records shows that a T3 physical profile and assignment limitations were imposed upon the individual on 7 November 1969 for tendon and nerve injury to his little finger.  The DA Form 3349 also shows the applicant had been hospitalized from 19 October 1969 to the present date [shown as 7 November 1969].  The physical profile record does not show how the applicant incurred the injury - whether it was incurred accidentally or whether it was the result of hostile action.

15.  The partial copy of the VA Rating Decision the applicant submitted shows the following statements:  "Service connection for residuals of left fifth digit injury has been established as directly related to military service.  Your service medical record show treatment for tendon and nerve injury of the little finger."


16.  Army Regulation 600-8-22 (Military Awards) 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 by medical personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  To be awarded the Purple Heart, substantiating evidence must be presented to show that the applicant was wounded as 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.

2.  The applicant indicates that he was awarded the Purple Heart and wants a correct copy of his DD Form 214 showing this award; however, the evidence of records does not support award of the Purple Heart to him and he did not provide documentary evidence sufficient to show that the Purple Heart was awarded to him.

3.  In his request for addition of the Purple Heart to his DD Form 214, the applicant did not describe the circumstances which led to what he describes as residuals of left fifth digit injury.  A physical profile record on file in the applicant's service record shows that a T3 physical profile and assignment limitations were imposed upon him on 7 November 1969 for tendon and nerve injury to his little finger and he was hospitalized from 19 October 1969 to that present date [7 November 1969]; however, the physical profile records does not show how the applicant incurred the injury - whether it was incurred accidentally or whether it was the result of hostile action.

4.  The applicant's name does not appear on the Vietnam casualty list.  The applicant's name also does not appear on the U.S. National Archives and Records Administration's Casualty Information System which has the names of deceased, wounded, or ill or injured Army personnel.

5.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement.

6.  Based on the evidence, the applicant is not entitled to award of the Purple Heart nor is he entitled to have the Purple Heart added to his DD Form 214 at this time.

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)                                         AR20090008629





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ABCMR Record of Proceedings (cont)                                         AR20090008629



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