BOARD DATE: 29 October 2009
DOCKET NUMBER: AR20090008686
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 that he be awarded the Purple Heart.
2. The applicant states that although he received a combat injury while in the field, he was treated for the injury for such a long period of time that the combat connection to his injury was forgotten resulting in him not being awarded the Purple Heart.
3. The applicant provides excerpts of his military medical records.
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 applicants 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 applicants 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 records show that he was inducted into the Army on 24 March 1969, was awarded the military occupational specialty of light weapons infantryman, and was promoted to pay grade E-4.
3. He served in Vietnam from 24 August 1969 to 25 October 1970.
4. The military medical records provided by the applicant show that on 6 September 1969 he was treated for infections in both ears. He was diagnosed as having otitis media [ear infection]. He received follow-up medical care for this condition on 8 and 10 November 1969 and was given permanent physical profile limitations on 10 December 1969. None of these medical records indicate that any wound or injury caused the ear infections.
5. On 25 October 1970, the applicant was honorably released from active duty.
6. Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) is blank.
7. Army Regulation 672-5-1 (Military Awards), then in effect, provided, in pertinent part, that the Purple Heart was awarded to any member of an Armed Force or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. armed services has been wounded, killed, or who has died as a result of 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 a medical officer, and the medical treatment must have been made a matter of official record.
8. Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9 of the version in effect at the time, stated, in pertinent part, that a brief description of wounds or injuries (including injury from gas) requiring medical treatment that were received through hostile or enemy action, including those requiring hospitalization would be entered in item 40 of the DA Form 20. This regulation further stated that the date the wound or injury occurred would also be placed in item 40.
DISCUSSION AND CONCLUSIONS:
1. While the applicant has provided evidence to show that he was diagnosed with and treated for otitis media while in Vietnam, there is no evidence to show that condition was the result of hostile action.
2. Without evidence to show that the applicant was injured as the result of hostile action, there is insufficient evidence in which to grant him the Purple Heart.
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.
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