IN THE CASE OF:	  

BOARD DATE:	        5 November 2009

DOCKET NUMBER:  AR20090009293 


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, award of the Purple Heart.

2.  The applicant states, in effect, that he was wounded in early 1970 in his left knee by shrapnel while engaged in a firefight with Viet Cong.  That day several Soldiers of his platoon were wounded badly enough to be evacuated by helicopter to the rear for medical treatment.  After the firefight the applicant returned to the rear and was treated for his wound by medical personnel.  The applicant states that his wound was not considered severe enough to keep him out of the field more than 1 week.  The applicant further states because of the quick healing time of his wound and the severity of his fellow Soldier's wounds he did not pursue a Purple Heart from the incident.

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 2 February 1971 and a witness statement from a former fellow Soldier, dated 29 January 2009.

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 was inducted into the Army of the United States on 3 February 1969 and successfully completed basic training and advanced individual training. 
He was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant arrived in Vietnam and was assigned to Company D, 26th Infantry, 1st Infantry Division, on 17 June 1969.  He was reassigned to Company B, 3rd Battalion, 7th Infantry, 199th Infantry Brigade, on 7 April 1970.

4.  The applicant departed Vietnam on 3 July 1970.  On 2 February 1971, he was honorably released from active duty in the rank of sergeant/E-5 after completing 2 years of creditable active service with no time lost.

5.  His DD Form 214 for the period ending 2 February 1971 shows he was awarded the National Defense Service Medal, the Combat Infantryman Badge, the Vietnam Service Medal with two bronze service stars, the Air Medal with two oak leaf clusters, the Vietnam Campaign Medal with Device (1960), and the Army Commendation Medal.

6.  There are no general orders in the applicant's service personnel records that show he was awarded the Purple Heart.  There also is no evidence in his service personnel records that show he was wounded or treated for wounds as a result of hostile action in Vietnam.  The applicant's name is not listed on the Vietnam casualty roster.

7.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not show the applicant was wounded and item 41 (Awards and Decorations) does not show award of the Purple Heart.

8.  During the processing of this case, a member of the Board's staff reviewed the Awards and Decorations Computer Assisted Retrieval System maintained by the Military Awards Branch of the United States Army Human Resources Command which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any orders for the applicant showing award of the Purple Heart.

9.  The applicant's Army medical treatment records are unavailable.
10.  The applicant provides a witness statement from a former fellow Soldier, a retired master sergeant, dated 29 January 2009.  The author states that he was in the same squad as the applicant.  He witnessed the applicant being wounded by shrapnel in the leg.  The author stated that a medic cleaned and bandaged the applicant's wound and that the applicant elected to stay in the field because they were short handed and had medically evacuated other Soldiers that day.

11.  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, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of entitlement to award of the Purple Heart for injuries he received while in Vietnam was carefully considered.  There is no medical evidence to show he was treated for injuries he received in July 1970 and returned to duty.  While his injury is unfortunate, there is no evidence in the available records and the applicant has not provided sufficient evidence that shows his injury was a result of hostile action.

2.  The applicant's former fellow Soldier's witness statement alone is insufficient evidence to show he is authorized the award.  The applicant's commander at the time of the incident must have been aware of the incident as well as the severity of the applicant's injury and medical treatment.  It appears the commander did not find it appropriate at that time to recommend the applicant for award of the Purple Heart.

3.  Regrettably, in view of the foregoing, there is insufficient evidence that would warrant granting 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)                                         AR20090009293



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ABCMR Record of Proceedings (cont)                                         AR20090009293



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