BOARD DATE:	  12 November 2009

		DOCKET NUMBER:  AR20090009720 


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 Combat Action Ribbon (CAR) and the Purple Heart.

2.  The applicant states that based on the attached orders and the Disabled American Veterans (DAV) article he presents, he believes he is worthy of the CAR and the Purple Heart.  He goes on to state that he was on convoy when the truck behind him got blown up and it led to leakage from his ears.  He goes on to state that he was sent to Saigon and then to Japan for treatment for 3 months.  He further states that he was told that he could not return to combat again and was reassigned to Japan.  He also states that he was an artillery chief in combat and was involved in convoys.

3.  The applicant provides copies of orders transferring him from the 3d Field Hospital in Saigon to a hospital in Japan on or about 14 December 1965 and a copy of a DAV article.

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 honorably released from active duty on 31 August 1972 and he was transferred to the Retired List in the pay grade of E-6 effective 1 September 1972 by reason of sufficient service for retirement.  He had served 20 years and 7 days of creditable active service.

3.  A review of his official records show that he was assigned to an artillery battery at Fort Riley, KS when he was transferred to the Republic of Vietnam with his unit on 30 September 1965 for duty as a section chief.

4.  On 17 December 1966, he was transferred to the U.S. Army Hospital at Camp Zama, Japan.  On 9 March 1967, he was assigned to the U.S. Army Garrison-Japan for duty as the Assistant Fire Chief.  He departed Japan on 16 March 1968 for assignment to Germany.

5.  The applicant's records failed to show any indication that he was wounded as a result of enemy action.  A review of his retirement physical shows that he indicated that he had been treated at a hospital in Saigon on 11 December 1965 for a damaged and draining left ear drum, that he was transferred to Camp Zama, and was discharged from the hospital in February 1966 with a physical profile.

6.  A review of the Vietnam Casualty Listing also fails to reveal that the applicant was reported as a casualty.

7.  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.

8.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided, in pertinent part, for award of the Purple Heart.  The regulation stated that authority to award the Purple Heart was delegated to hospital commanders.  Further, it directed that all personnel treated and released within 24 hours will be awarded the Purple Heart by the organization to which the individual is assigned.  Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam will be awarded the Purple Heart directly by the hospital commander rendering treatment.
9.  Department of Defense Instruction 1348.33 (Military Awards Program) shows that the Combat Action Ribbon was authorized by the Secretary of the Navy on 17 February 1969.  It is awarded to members of the U.S. Navy, the U.S. Marine Corps, and the U.S. Coast Guard operating under the control of the U.S. Navy in the grade of O-6 and below who have actively participated in ground or surface combat.

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant's claim that he should be awarded the Purple Heart is not in question, there simply is no evidence in the applicant's Official Military Personnel File (OMPF) and the applicant has not provided any evidence to show that the injury to his ear was the result of enemy action or that actual treatment was given for that injury.

2.  It is also noted that he was in two hospitals for the injury to his ear and neither hospital awarded him the Purple Heart.  Therefore, in the absence of evidence to show that his injury was caused as a result of hostile enemy action, there appears to be no basis to award him the Purple Heart. 

3.  The applicant's contention that he should have been awarded the Combat Action Ribbon has also been noted and found to lack merit.  The Combat Action Ribbon was then and still is now awarded only to personnel under the control of the U.S. Navy who participate in ground or surface combat.  It is not an award authorized to be awarded by the Army.  Therefore, there is no basis for granting this portion of the applicant's requested relief.

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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ___x_____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.



      ___________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)                                         AR20090009720



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ABCMR Record of Proceedings (cont)                                         AR20090009720



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