IN THE CASE OF:	  

		BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090009266 


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. 

2.  The applicant essentially states that he was wounded by a piece of shrapnel while serving in Vietnam but was never awarded the Purple Heart.  He also states that he did not think much about it until looking at his DD Form 214 (Certificate of Release or Discharge from Active Duty).  He further claims that he was in a supply convoy delivering supplies to troops when they were attacked, and that while behind a rock, he saw a baseball-sized black item coming at him and ducked, but that a part of it still hit him.  Additionally, he contends that the shrapnel hit him just above the right kidney, and that he removed it and forgot about it.

3.  The applicant provides his DD Form 214 that was issued on 28 October 1988 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 military records show that he enlisted in the Regular Army (RA) on 22 April 1971 and served on continuous active duty until he was honorably discharged on 28 October 1988 in the rank/grade of staff sergeant (SSG)/E-6.  His overseas service included a tour in Vietnam from 18 September 1971 to 23 April 1972 and two tours in Germany from 4 August 1975 to 25 May 1978 and from 6 October 1981 to 21 September 1984.  Item 13 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 that was issued on 28 October 1988 shows that he was awarded the Army Commendation Medal, Good Conduct Medal (5th Award), National Defense Service Medal, Vietnam Service Medal with three bronze service stars, Noncommissioned Officer Professional Development Ribbon with Numeral "1," Army Service Ribbon, Overseas Service Ribbon (2nd Award), Republic of Vietnam Campaign Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Expert Marksmanship Qualification Badge with Rifle Bar.

3.  Item 13 does not show that he was awarded the Purple Heart.  His two previous DD Forms 214 also do not show that he was awarded the Purple Heart.  Item 9 (Awards, Decorations, and Campaigns) of his DA Form 2-1 (Personnel Qualification Record) 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 (ADCARS), 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.  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 personnel, and the medical treatment must have been made a matter of official records.  This regulation also provides that there is no time limitation on requests for award of the Purple Heart.  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 medical officials; and the records of medical treatment must have been made a matter of official Army records.

5.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart. 

2.  The applicant's claim that he was wounded in action while serving in Vietnam was noted; however, there is no evidence in the applicant's military records, and the applicant failed to provide any evidence, to corroborate his claim.  Additionally, the fact that he stated that he removed a piece of shrapnel himself only serves to show that he was not treated by medical personnel for any wound, which is one of the three requirements that must be fulfilled in order to be awarded the Purple Heart.

3.  While the applicant's claim to entitlement to award of the Purple Heart is not questioned, absent evidence which conclusively proves, by a preponderance of the evidence, that he was wounded or injured as a result of hostile action, that he was treated by medical personnel at the time for wounds or injuries received as a result of hostile action, and that this medical treatment was made a matter of official record, there is no basis for awarding the applicant 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.

ABCMR Record of Proceedings (cont)                                         AR20090009266



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ABCMR Record of Proceedings (cont)                                         AR20090009266



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