BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090009588 


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 (PH).  

2.  The applicant states, in effect, that he should be awarded the PH based on an injury he sustained during combat action at Landing Zone (LZ) Sandy in the Republic of Vietnam (RVN) and this award should be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

3.  The applicant provides his DD Form 214 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, and 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 record shows he was inducted into the Army of the United States and entered active duty on 1 April 1968 and that he was trained in and awarded military occupational specialty (MOS) 13B (Field Artillery Crewman).

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 21 March 1969 through on or about 14 March 1970.  Item        38 (Record of Assignments) shows that during his RVN tour, he was assigned to Battery B, 5th Battalion, 4th Artillery Regiment, 1st Brigade, 5th Infantry Division, performing duties in MOS 13B as a gunner.

4.  Item 40 (Wounds) of the applicant's DA Form 20 is blank and the PH is not included in the list of earned awards entered in item 41 (Awards and Decorations).  

5.  The applicant's Official Military Personnel File (OMPF) is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty.  It is also void of any medical treatment records or documents indicating he was ever treated for a wound he received as a result of enemy action.

6.  On 14 March 1970, the applicant was honorably released from active duty (REFRAD) after completing 1 year, 11 months, and 14 days of active military service.  The DD Form 214 he was issued at the time shows he earned the following awards during his active duty tenure: National Defense Service Medal, Vietnam Service Medal, RVN Campaign Medal, RVN Gallantry Cross with Palm Unit Citation, Army Commendation Medal, Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar, and 2 Overseas Service Bars.  

7.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant's name was not included on this list.  Additionally, a review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), 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 PH for the applicant.

8.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, that in order to support award of the PH there must be evidence showing that the wound for which the award is being made was received as a result of enemy action, that it was treated by medical personnel, and a record of this treatment must have been made a matter of official record.  
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the PH based on an injury he sustained during combat action in the RVN was carefully considered. However, by regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that it required treatment by military medical personnel, and a record of the medical treatment must have been made a matter of official record.  

2.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action, and the PH is also not included in the list of awards contained in Item 41.  Further, his OMPF is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty, or of medical treatment records that indicate he was ever treated for a combat-related wound or injury.  

3.  Finally, the applicant's name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  As a result, absent any evidence of record confirming the applicant was wounded in action or treated for a combat-related wound while serving in the RVN, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case and it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to grant the requested relief at this late date.  

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.  The applicant has failed to submit evidence that would satisfy this requirement related to award of the PH.   

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)                                         AR20090009588



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ABCMR Record of Proceedings (cont)                                         AR20090009588



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