IN THE CASE OF:	  

		BOARD DATE: 	       29 October 2009

		DOCKET NUMBER:  AR20090009614 


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 (PH).

2.  The applicant states, in effect, that based on the information contained in the Air Medal (AM) with "V" (Valor) Device General Orders (GO) he is providing, he should be awarded the PH and it should be added to his record and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

3.  The applicant provides his DD Form 214 and AM orders (AM and AM with "V" Device) 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's record shows he enlisted in the Regular Army (RA) and he entered active duty on 15 January 1968.  He trained in and he was awarded military occupational specialty (MOS) 67N (Helicopter Mechanic). 

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 30 April 1969 to 14 August 1970.  Item 38 (Record of Assignments) shows that during his RVN tour he was assigned to the 176th Aviation Company, performing duties as a helicopter mechanic.  Item 40 (Wounds) is blank and the PH and AM with "V" Device are not included in the list of awards contained in item 41 (Awards and Decorations).

4.  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 the proper authority.  It does contain Headquarters, Americal Division, GO 10888, dated 21 October 1969, which awarded him the AM for meritorious achievement while participating in aerial flight during the period 12 May 1969 to 24 May 1969.  There are no AM with "V" Device orders on file in his OMPF.

5.  The applicant's OMPF contains the following medical treatment records that are void of any indication he was ever treated for a combat-related wound during his tenure in the RVN.

   a.  Standard Forms (SF) 600 (Chronological Records of Medical Care) that cover the period between 24 January 1968 and 13 August 1970;
   
b.  SFs 88 (Report of Medical Examination) and SFs 89 (Report of Medical 
History) documenting a flight physical examination of 1 April 1970; and

c.  a separation physical examination, dated 17 August 1970. 

6.  On 17 August 1970, the applicant was honorably released from active duty (REFRAD), in the rank/grade of specialist five (SP5)/E-5, after completing
2 years, 7 months, and 3 days of active military service this period.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he earned the National Defense Service Medal, Vietnam Service Medal, RVN Campaign Medal, 2 Overseas Service Bars, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and the Expert Marksmanship Qualification Badge with Rifle Bar.  

7.  The PH is not included in the list of earned awards contained on the DD Form 214 and there is no indication that the applicant addressed award of the PH at anytime while serving on active duty or at the time of his REFRAD. 

8.  The applicant provides a copy of Headquarters, Americal Division, GO 4276, dated 27 April 1970, which indicates he was awarded the AM with "V" Device for heroism while participating in aerial flight in the RVN on 23 October 1969.  The reason outlined in these orders indicate that the applicant suffered severe shrapnel wounds when two enemy hand grenades detonated against the aircraft and ignoring his painful wounds and denying himself medical attention, he continued to engage the enemy until the helicopter cleared the area. 

9.  During the processing of this case, a member of the Board staff reviewed the Department of the Army Vietnam Casualty Reference Name Listing.  There is no entry pertaining to the applicant on this roster.  Additionally, the Awards and Decorations Computer Assisted Retrieval System (ADCARS), a web based index of GOs issued between 1965 and 1973 for the Vietnam era, was also reviewed.  However, the orders provided by the applicant were not on file and there were no PH orders for the applicant on file.  

10.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-8 contains guidance on award of the PH.  It states, in pertinent part, that 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 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 the information contained in the reason cited on the AM with "V" Device orders he provides was carefully considered.  However, the validity of the AM orders provided cannot be verified by existing official records.  The orders are not on file in ADCARS and they are not on file in his OMPF.  Therefore, since the orders provided are not originals and absent verification of the validity of the orders or other corroborating evidence, the orders alone do not support award of the PH in this case.

2.  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 medical personnel, and this medical treatment must have been made a matter of official record.

3.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action, and item 41 does not include the AM with "V" Device or PH in the list of earned awards.  Further, the medical treatment records on file fail to show he was ever treated for a combat-related wound while serving in the RVN.
4.  The applicant's OMPF is also void of any orders or documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty and his name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  

5.  Since there is no evidence of record to corroborate the validity of the copy of the AM with "V" Device orders provided by the applicant or the information regarding his being wounded in action contained therein, or that confirms he was ever treated for a combat-related wound or injury by military medical personnel while serving in the RVN, these orders alone are not sufficient to satisfy the regulatory burden of proof necessary to support award of the PH.

6.  The governing regulation requires not only proof that a member was wounded in action, but also that the wound for which the PH is being awarded required treatment by medical personnel in order to support award of the PH.  As a result, absent evidence that satisfies the regulatory criteria necessary to support award of the PH or evidence that he was in fact awarded the PH by proper authority while serving on active duty, it would not be appropriate or serve the interest of all those who served in the RVN and faced similar circumstances to grant the requested relief in this case.

7.  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.

8.  The applicant and all others concerned should know that this action related to award of the PH in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20090009614



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ABCMR Record of Proceedings (cont)                                         AR20090009614



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