IN THE CASE OF:
BOARD DATE: 9 March 2010
DOCKET NUMBER: AR20090009760
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 two Purple Hearts for wounds received in action in the Republic of Vietnam (RVN).
2. The applicant states, in effect, while in the RVN he sustained a wound to his neck on 10 September 1971, and he sustained a shrapnel wound on
18 October 1971.
3. The applicant provides two Standard Forms (SF) 600 (Chronological Records of Medical Care), that show he was treated between 10 September and
2 November 1971 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 applicants 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 applicants 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 initially inducted into the Army of the United States and he entered active duty on 16 March 1971. He was trained in and awarded military occupational specialty 64B (Light Vehicle Driver). On 1 July 1971, he was reclassified into MOS 64C (Truck Master). On 30 March 1972, he enlisted in the Regular Army for 6 years.
3. The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 11 August to 30 October 1971. Item 40 (Wounds) is blank and the Purple Heart is not included in the list of awards contained in item 41 (Awards and Decorations). Item 48 (Date of Audit) shows the applicant last audited this record on 14 February 1974.
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 Purple Heart by proper authority while serving on active duty.
5. On 13 March 1978, the applicant discharged under other than honorable conditions, in the rank of private/E-1. He had completed 6 years, 7 months, and 21 days of creditable active military service and accrued 171 days of lost time. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he earned the National Defense Service Medal, Vietnam Service Medal RVN Campaign Medal, RVN Gallantry Cross with Palm Unit Citation, Army Good Conduct Medal, and Expert Marksmanship Qualification Badge with Rifle Bar.
6. During the processing of this case, a member of the Board's staff reviewed the Department of the Army Vietnam Casualty Roster. The applicant's name does not appear on this roster.
7. The SFs 600 the applicant provided show he was treated for a neck wound on 10 September 1971 and a laceration of his palm on 18 October 1971. These documents do not specify the circumstances surrounding his injuries.
8. Army Regulation 600-8-22 (Military Awards) provides the Army's awards policy. Paragraph 2-8 contains guidance on award of the Purple Heart. It states, in pertinent part, that in order to support award of the Purple Heart 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 this medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he should have been awarded two Purple Hearts based on being wounded in action twice was carefully considered. However, there is insufficient evidence to support this claim.
2. Although the applicant was treated for a neck wound and a laceration to his palm while serving in the RVN, as indicated on his SFs 600, these documents do not indicate he was wounded as a result of hostile action. Item 40 of his DA Form 20 is blank, and the PH is not included in the list of awards contained in item 41.
3. Further, the applicant's name does not appear on the Vietnam Casualty Roster, the official DA list of RVN battle casualties. Therefore, absent any evidence confirming he was wounded as a result of enemy action while serving in the RVN, the regulatory burden of proof necessary to support award of the PH has not been satisfied 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) AR20090009760
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ABCMR Record of Proceedings (cont) AR20090009760
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