IN THE CASE OF:	  

		BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090009558 


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 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 he was wounded and awarded the Purple Heart in Vietnam and it is not reflected on his DD Form 214.  He also states that documentation of his Purple Heart will confer eligibility for benefits which he rightfully merits.

3.  The applicant provides in support of his application copies of three pages of his Standard Form (SF) 600 (Chronological Record of Medical Care), dated 7 March 1970; and his DD Form 214.

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 was inducted into the Army of the United States in pay grade E-1 on 8 April 1969.  He completed basic combat and advanced training and was awarded military occupational specialty 11B, light weapons infantryman.  He served in Vietnam from 4 September 1969 to 4 September 1970.

3.  The applicant’s records contain, and he submitted, a copy of an SF 600, dated 7 March 1970, that shows he was diagnosed as having sustained a fragment wound of his right elbow.  This SF 600 shows the applicant did not seek medical treatment until approximately 48 hours after the incident.  The SF 600 does show he received treatment, and the treatment was made a matter of official record.  The form does not reflect the cause of the wound and does not give any indication it was the result of hostile enemy action.

4.  The applicant was honorably released from active duty in pay grade E-5 on 22 January 1971 and transferred to the United States Army Reserve Control Group (Annual Training).  He was credited with 1 year, 9 months, and 15 days of net active military service.

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 Vietnam Service Medal with two bronze service stars, the Republic of Vietnam Campaign Medal, the Air Medal, the Combat Infantryman Badge, the Army Commendation Medal, and the Expert Marksmanship Qualification Badge with Rifle Bar.  The Purple Heart is not shown on his DD Form 214.

6.  There is no entry in Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) showing he was wounded in action as a result of hostile enemy action.  Item 41 (Awards and Decorations) of his DA Form 20 contains no entry showing he was awarded the Purple Heart.

7.  There are no orders in the applicant's military personnel records awarding him the Purple Heart.

8.  The Vietnam Casualty List was reviewed to determine if the applicant had been wounded in action while he served in Vietnam.  The applicant's name is not shown on this list.

9.  A search of the Awards and Decorations Computer-assisted Retrieval System (ADCARS) was made for orders awarding the applicant the Purple Heart.  No orders for this award were found in the ADCARS.

10.  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.  

DISCUSSION AND CONCLUSIONS:

1.  To be awarded the Purple Heart, substantiating evidence must be presented to show that the Soldier was wounded as a result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

2.  The evidence shows the applicant sustained a fragment wound of his right elbow in March 1970 and he sought medical treatment 48 hours later.  There is no evidence, and the applicant has provided none, to show he was wounded as a result of hostile action.  The criteria for award of the Purple Heart specified in the applicable regulation must be met the applicant has failed to meet this criteria.

3.  The evidence does not show he was ever recommended for or awarded the Purple Heart by proper authority and his name does not appear on the Vietnam Casualty Listing.  There were also no entries made in his personnel records to show he was wounded as a result of hostile enemy action.  Therefore, absent evidence to show the cause of the applicant's wound, (eyewitness accounts, chain of command supporting letters, etc.), the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  Therefore, the applicant is not entitled to have the Purple Heart awarded and added to his DD Form 214.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.






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)                                         AR20090009558



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ABCMR Record of Proceedings (cont)                                         AR20090009558


   
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