BOARD DATE: 10 December 2009
DOCKET NUMBER: AR20090009387
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 award of the Purple Heart be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
2. The applicant states that the Purple Heart was never placed on his discharge document. He was issued the medal before his discharge and he wore the medal on his uniform at the time of his discharge. His mother had his Purple Heart certificate at that time, but he and his mother have not been able to locate it. He contends that there are service medical records showing he received a gunshot wound to his right foot.
3. The applicant provides no additional documents 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 enlisted in the Regular Army on 2 November 1965. He completed training as an ordnance stock records clerk. The highest grade he attained was specialist five, E-5. He served in Vietnam from 16 September 1966 through 16 September 1967. There is no evidence of record which shows he was wounded in action during his tour in Vietnam.
3. His DA Form 20 (Enlisted Qualification Record) does not list the Purple Heart in item 41 (Awards and Decorations).
4. There are no orders in the applicant's personnel records which show he was awarded the Purple Heart. His DA Form 20 does not list any wounds as a result of hostile action in item 40 (Wounds). His name is not included on the Vietnam casualty roster.
5. The applicant was separated on 1 November 1968. His DD Form 214 for the period ending 1 November 1968 does not show entitlement to award of the Purple Heart.
6. The applicant again enlisted in the Regular Army on 15 March 1971.
7. The applicant's service records contain a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 23 April 1971, which shows he received a gunshot wound to his right foot while involved in a robbery and while on pass in Atlanta, GA, on 27 March 1971.
8. His service personnel records contain a DD Form 261 (Report of Investigation), dated 29 July 1971, which shows he was shot in the right heel during a robbery in Atlanta, GA, on 27 March 1971.
9. The applicant was discharged on 16 March 1973. His DD Form 214 for the period ending 16 March 1973 does not show entitlement to the Purple Heart.
10. Army Regulation 600-8-22 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. Paragraph 2-8b(2) states that for the purpose of considering an award of the Purple Heart, a wound is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy. The regulation states that the key issue that commanders must take into consideration is the degree to which the enemy caused the injury. The fact that the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that he was issued the Purple Heart before he was discharged and that he received a gunshot wound to his right foot. Although the applicant's service records confirm he received a gunshot wound to his right foot, he received this wound during a robbery while he was on pass in Atlanta, GA. There is no evidence of record which shows he sustained a wound as a result of hostile action.
2. By regulation, in order to award the Purple Heart it is necessary to establish that a Soldier was wounded in action, that the wound required treatment by medical personnel, and the treatment must have been made a matter of official record.
3. In the absence of any other corroborating evidence of record which shows the applicant was wounded or injured as a result of hostile action, there is insufficient evidence upon which to base award of the Purple Heart in this case.
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) AR20090004330
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