IN THE CASE OF:	  

		BOARD DATE:	  	  29 October 2009 

		DOCKET NUMBER:  AR20090008953 


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 his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show the second award of the Purple Heart (in effect the Purple Heart with 1st oak leaf cluster).

2.  The applicant states that while he was serving with the 3rd Squadron, 5th Cavalry, he was assigned as the senior medic.  He further states that in the spring of 1971, while they were on top of a hill in Dang Ha, Republic of Vietnam (RVN), the armored personnel carrier (APC) he was riding on hit a claymore mine with nails.  He states that he was among the wounded.  He received two pieces of fragment in his left knee and the tip of his middle finger was gone.  He states that since he was the only medic available he could not write himself up for a Purple Heart.  The applicant also states that an eyewitness saw him limping with blood on his pants.  He concludes by stating that he was seen at the aid station on 31 August 1971, and the doctor noted the scars on his left knee due to fragment wounds. 

3.  The applicant submitted a self-authored statement, a witness statement, and one page of his medical records 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 records show he enlisted in the Regular Army (RA) on
27 March 1967.  

3.  Item 31 (Foreign Service) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 2 February to 2 July 1968, from 2 January to 28 November 1969, and from 28 October 1970 to 
27 October 1971.  

4.  Item 40 (Wounds) of his DA Form 20 shows that he was treated on
11 April 1969, for face wounds and lost cartilage in his leg.

5.  The applicant's name is listed on the Vietnam Casualty Roster under casualty status 22, which refers to "hostile wounded in action –serious – hospitalized" with a date of casualty of 11 April 1969.  His name is not listed a second time.

6.  General Orders Number 206, Headquarters, 12th Evacuation Hospital, APO San Francisco, dated 5 August 1969, show that the applicant was awarded the Purple Heart for wounds received on 4 August 1969.  There is no additional evidence which shows he was wounded on 4 August 1969.

7.  On 28 November 1969, the applicant was released from active duty.  He completed a total of 2 years, 8 months, and 2 days of net active service.  Item   24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded the Army Commendation Medal, Vietnam Service Medal, RVN Campaign Medal with Device 1960, Expert Marksmanship Qualification Badge with Rifle Bar (M-14), and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16).  This DD Form 214 does not show award of the Purple Heart.

8.  On 27 August 1970, the applicant again enlisted in the Regular Army.  

9.  He served in the RVN from 28 October 1970 to 27 October 1971 with the following units:

		a.  the 3rd Field Hospital from 3 November to 11 November 1970; 
		b.  the 218th Medical Detachment from 12 November 1970 to 28 April 1971;

		c.  the 75th Support Battalion from 29 April to 19 May 1971; and 

		d.  the 5th Cavalry Battalion, 1st Brigade, 5th Infantry Division from 
20 May to 1 October 1971.   

10.  The applicant submitted a copy of his Standard Form 600 (Health Record) which shows he was treated for chronic pain in his knees, on 31 August 1971; that he was wounded in 1969; and that he had two scars on his knees from fragment wounds.

11.  On 19 May 1976, the applicant retired honorably by reason of a permanent disability.  He completed a total of 9 years and 6 days of net active service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded the National Defense Service Medal, Army Commendation Medal with "V" Device, Vietnam Service Medal with one silver service star and four bronze service stars, RVN Campaign Medal with Device 1960, Combat Medical Badge, Bronze Star Medal, and the Purple Heart.  This DD Form 214 does not show award of a second Purple Heart.

12.  There are no orders in the applicant’s service personnel records that show he was awarded Purple Heart with 1st oak leaf cluster.

13.  The applicant provides a witness statement from a former Soldier who states the applicant was injured in the RVN when the APC he was riding on hit a claymore with nails.  

14.  The applicant's record contains a memorandum, dated 26 March 1976, requesting that a line of duty investigation be conducted stemming from the applicant being injured while assigned to the 544th Engineer Battalion in the RVN as a result of injuries he sustained while standing about 6 feet from a 5 ton dump truck that hit a mine.  The right rear tire and axle blew off striking him on the right side and knocking him unconscious.  He was evacuated to the 12th Evacuation Hospital and ultimately to Walter Reed Army Medical Center for fractured ribs, facial lacerations, and severe back pain.  

15.  The applicant's record contained a memorandum, dated 27 April 1976, which states that the applicant's injuries received on 11 April 1969 were the result of hostile action.

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.

17.  Army Regulation 600-8-22 also states, in pertinent part, that the bronze oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show a award of the Purple Heart with oak leaf cluster.  

2.  The applicant is not listed on the Vietnam casualty roster as being wounded during his tour in the RVN in 1971.  There is also no evidence in his service personnel records which shows he was wounded or injured as a result of hostile action or treated for such a wound in 1971. 

3.  Item 40 (Wounds) of his DA Form 20 shows that he was treated on
11 April 1969, for face wounds and lost cartilage in his leg.  The applicant's name is listed on the Vietnam Casualty Roster with a casualty date of 11 April 1969.  His name is not listed a second time.  The available evidence also shows the applicant was awarded the Purple Heart for wounds received as a result of being hit by nails from a claymore on 11 April 1969.  

4.  Evidence of record shows that although he received orders for a Purple Heart for wounds received on 4 August 1969 while assigned to the 12th Evacuation Hospital there is no evidence of record nor did the applicant provide any evidence which shows he was wounded on 4 August 1969.  

5.  In the absence of evidence that shows he was wounded or injured as a result of hostile action on 4 August 1969, and treated for those wounds, it is concluded that the Purple Heart he received while assigned to the Evacuation Hospital was for the wounds he received on 11 April 1969.  Based on the foregoing, there is insufficient evidence to support the applicant's request.






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)                                         AR20090008953



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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