IN THE CASE OF:	  

		BOARD DATE:	        8 October 2009

		DOCKET NUMBER:  AR20090009072 


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 he be awarded the Purple Heart and that it be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states, in effect, that he never received the Purple Heart for a wound he received to his left wrist.  He adds that his injury was never documented or treated properly because they were in the middle of combat.

3.  The applicant submitted no additional documentation in support of his request.

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 was inducted into the Army of the United States on 25 April 1966.  After completing all required training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant served in Vietnam from 17 December 1966 through 
26 December 1967.  He served with Company A, 4th Battalion, 39th Infantry Regiment, 9th Infantry Division.

4.  The applicant was honorably released from active duty on 24 April 1968 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations) at the expiration of his term of service.  He was released from active duty in the rank of Sergeant, pay grade E-5.  On the date he was released from active duty he had served 2 years, with no time lost.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the National Defense Service Medal, the Republic of Vietnam Campaign Medal with Device 1960, the Vietnam Service Medal with two bronze service stars, two overseas service bars, the Combat Infantryman Badge, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar 
(M-14 Rifle).  The Purple Heart is not shown as an authorized award.

6.  No entry appears in item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) to show he received a wound in action against a hostile force while he served in Vietnam.

7.  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.

8.  There is no entry in item 41 (Awards and Decorations) of the DA Form 20 showing he was awarded the Purple Heart.



9.  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 for the applicant.

10.  A Standard Form (SF) 89 (Report of Medical History) completed in part by the applicant during his separation physical examination, on 7 March 1968, does not show that he was wounded in action during his assignment to Vietnam.  The applicant did report he had been hospitalized at the 24th Evacuation Hospital for a back injury he incurred from falling out of a helicopter while in Vietnam.

11.  A letter, dated 17 June 1968, is on file in the applicant's service personnel record which states he was examined in Jackson Heights, New York, after he was released from active duty and was found to be suffering from considerable low back pain and limitation of motion of his back due to sacro-iliac strain and lumbo-sacral derangement.  The letter states he suffered the back injury in June 1967 while in military service in Vietnam.  There is no mention of an injury to the applicant's left wrist.

12.  An SF 513 (Clinical Record - Consultation Sheet), dated 18 December 1969, shows the applicant was seen at the United States Naval Hospital, St. Albans, New York, for recurrent back pain.  The consultation report states the applicant fell out of a helicopter at about 20 feet in May 1967 and landed on his side.  He could not walk because his back and right leg pain.  In June 1968, he had a recurrence with heavy lifting.  The consultation does not mention or indicate the applicant injured his left wrist.

13.  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 (emphasis added) 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 the applicant was wounded as a 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 sustained a wound to his left wrist in combat; however, there is no evidence that he received treatment for a wrist injury or a wound either in the field or on his return to base camp.  The applicant admits in his application that his injury was never documented nor was his injury treated properly because he was in the middle of combat.

3.  When the applicant underwent his separation physical examination, he indicated he had been hospitalized at the 24th Evacuation Hospital for a back injury he incurred from falling out of a helicopter while in Vietnam.  The fall was not attributed to hostile enemy action and it appears he may have fallen out of the helicopter accidentally.

4.  The available evidence show the applicant continued to seek medical treatment after he was released from active duty for recurrent back pain.  In the consultation/examination records, there is no mention that the applicant sustained a wound or injury to his left wrist. 

5.  The applicant's name does not appear on the Vietnam casualty list.  The applicant's name also does not appear in 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.

6.  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 evidence that would satisfy this requirement and he is therefore not entitled to award of the Purple Heart and to have it added to his DD Form 214.

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)                                         AR20090009072



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ABCMR Record of Proceedings (cont)                                         AR20090009072



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