IN THE CASE OF:
BOARD DATE: 12 November 2009
DOCKET NUMBER: AR20090009909
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.
2. The applicant states, in effect, that he was assigned to Company D, 2nd Battalion, 5th Cavalry, that three other people in his unit got the Purple Heart for the same incident, and that they all were evacuated for their injuries. He contends that he suffered head injuries, hearing loss, and a concussion. He goes on to state that he was initially diagnosed with spinal cord injuries which was incorrect, that a 105mm artillery round was called in and hit about 3 feet behind him, that his service medical records which are currently held by the Department of Veterans Affairs (DVA) note that there was an official investigation of the incident, and that a forward observer was held accountable.
3. The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge); two eyewitness statements; and page 4 of a DVA Rating Decision 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 enlisted in the Regular Army on 28 April 1967 for a period of
3 years. He served as a light weapons infantryman assigned to Company D, 2nd Battalion, 5th Cavalry Division in Vietnam from 19 June 1968 to 16 June 1969. On 22 November 1970, he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining Reserve obligation.
3. The applicants DD Form 214 does not show the Purple Heart as an authorized award.
4. There is no evidence in the available records which shows that the applicant was awarded the Purple Heart or was wounded as a result of hostile action in Vietnam.
5. The applicant's DA Form 20 (Enlisted Qualification Record) does not show entitlement to the Purple Heart and item 40 (Wounds) on his DA Form 20 is blank. The applicant's name does not appear on the Vietnam Casualty Roster.
6. 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 Purple Heart.
7. There are no service medical records available.
8. In support of his claim, the applicant provided two eyewitness statements from fellow Soldiers at the time in question. One Soldier attests that the applicant was wounded in March 1969, that he received head injuries from artillery that was called in to their location for support, and that he was evacuated to a battalion hospital. The other Soldier attests that there was an incident where a 105mm artillery round landed inside their perimeter, exploded, and that the impact was so explosive that it dented the applicant's helmet and threw him at least ten feet into the air where he landed in thick bamboo. He states that the applicant was unconscious and they had a difficult time getting him down and that when the applicant came to he was unable to hear for a time. Afterwards, the applicant frequently complained of ringing in his ears and that he was sent back to the rear to be seen by medical personnel for this on more than one occasion.
9. 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:
There are no orders for the Purple Heart in the available records. In the absence of orders, his medical records, or other evidence of record showing that the applicant was injured or treated for wounds as a result of hostile action in Vietnam, the eyewitness statements provided by the applicant are not sufficient as a basis for award of the Purple Heart. Regrettably, there is insufficient evidence on which to base award of the Purple Heart 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) AR20090009909
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ABCMR Record of Proceedings (cont) AR20090009909
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