IN THE CASE OF:	  

		BOARD DATE:	 20 October 2009 

		DOCKET NUMBER:  AR20090008900 


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 his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that was issued on 27 June 1970, which will simply be referred to as his DD Form 214 throughout the remainder of these proceedings, be corrected to show the award of the Purple Heart and that he entered active duty on 20 June 1968.

2.  The applicant essentially states that he was awarded the Purple Heart for injuries he received in Vietnam in 1970 and that his total service shown in item 22 (Statement of Service) of his DD Form 214 is not properly reflected by the entry in item 17c (Date of Entry) of this document. 

3.  The applicant provides his DD Form 214 in support of this 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 DA Form 3286 (Enlistment Contract - Armed Forces of the United States) shows that he enlisted in the Regular Army on 20 June 1968.  He completed basic and advanced individual training and was awarded military occupational specialty 95B (Military Policeman).  He departed for the Republic of Vietnam on 2 December 1968.  On 28 June 1970, he reenlisted in the Regular Army for a period of 6 years.  He returned to the continental United States on       6 July 1970 and was assigned to Fort Bragg, North Carolina.  He served a second tour in Vietnam from 21 January 1971 to 22 December 1971, then was reassigned to Fort Story, Virginia.  Next, he served a tour in Germany from         4 March 1973 to 28 February 1975, then was reassigned to Fort Knox, Kentucky.  On 15 December 1976, he was discharged under honorable conditions under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Enlisted Personnel).  

3.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 does not show that he was awarded the Purple Heart.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) does not contain any entries that indicate he was wounded or injured as a result of hostile action.  Item 41 (Awards and Decorations) of this same document also does not show that he was awarded the Purple Heart.  There are no orders in his military records awarding him the Purple Heart, and a search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System, a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era, also failed to produce any orders awarding him the Purple Heart.  Additionally, the applicant’s name is not listed on the Vietnam Casualty Roster.  Further, there is no evidence in his military personnel records which shows that he was wounded or injured as a result of hostile action.

4.  Item 17c of the applicant's DD Form 214 shows that he initially entered active duty on 20 June 1970.   

5.  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 been treated by military medical personnel, and the medical treatment must have been made a matter of official 
Army records.  Each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire; the wound or injury must have required treatment by military medical personnel; and the record of medical treatment must have been made a matter of official Army record.

6.  Army Regulation 635-5 (Separation Documents), in effect at the time, provided guidance on the preparation of the DD Form 214.  For enlisted personnel, item 17c was to reflect the date entered onto active duty or the date of enlistment entered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show the award of the Purple Heart and that he entered active duty on 20 June 1968.

2.  The applicant's contention that he was awarded the Purple Heart in Vietnam was noted.  However, each approved award of the Purple Heart must exhibit all of the following factors: wound, injury or death must have been the result of enemy or hostile act; international terrorist attack; or friendly fire; the wound or injury must have required treatment by military medical personnel; and the record of medical treatment must have been made a matter of official Army record.  There is insufficient evidence to show that the three factors that must be exhibited to be entitled to the Purple Heart have been met in this case and he provides no evidence (such as orders that show he was awarded the Purple Heart; therefore, there is no basis for correcting his military records to show the award of the Purple Heart.

3.  Evidence of record clearly shows that the entry in item 17c of his DD Form 214 that he initially entered active duty on 20 June 1970 is in error, as he clearly enlisted and entered active duty in the Regular Army on 20 June 1968.  Therefore, he is entitled to correction of item 17c of his DD Form 214 to show that he entered active duty on 20 June 1968.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ____x____  _____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that item 17c of the applicant's DD Form 214 be corrected to show that he entered active duty on 20 June 1968 instead of 20 June 1970.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting his military records to show the award of the Purple Heart.




      _______ _   _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)                                         AR20090008900



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ABCMR Record of Proceedings (cont)                                         AR20090008900



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