IN THE CASE OF:	  

		BOARD DATE:	  10 December 2009

		DOCKET NUMBER:  AR20090010419 


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 that at the time he was injured he refused the award.  He also states that he served in an 11B (light weapons infantryman) military occupational specialty (MOS).

3.  The applicant provides a Standard Form (SF) 600 (Chronological Record of Medical Care) showing that he was treated for a knee injury on 3 February 1970.

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.  On 9 April 1969, the applicant was inducted into the Army of the United States in Muskogee, OK.  He successfully completed his training in MOS 11B as a light weapons infantryman.  He was transferred to Vietnam on 14 September 1969.

3.  There are no documents contained in the applicant’s official military personnel file (OMPF) that shows he was ever wounded as a result of hostile action while he was in the Republic of Vietnam.

4.  The applicant returned to the continental United States on 13 September 1970.  On 22 January 1971, he was honorably released from active duty (REFRAD) under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 5 (Separation for Convenience of the Government), by reason of early release to attend school.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.

5.  The DD Form 214 that he was furnished at the time of his REFRAD shows that he was awarded the National Defense Service Medal, Vietnam Service Medal with two bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), Army Good Conduct Medal (1st award), Combat Infantryman Badge (1st award), two Overseas Service Bars, Sharpshooter Marksmanship Qualification Badge with Rifle and Machinegun (M-14 and M-60) Bars, and the Marksman Marksmanship Qualification Badge (M-16) Bar.

6.  A review of the Vietnam Casualty Roster does not show the applicant was wounded in action while he was in Vietnam.  The DA Form 20 (Enlisted Qualification Record) that was maintained on the applicant while he was in Vietnam does not show that he was wounded while he was in Vietnam.  There are no published orders contained in his official records pertaining to the Purple Heart.

7.  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 pertaining to the applicant.

8.  The SF 600 that the applicant submitted shows that on 3 February 1970, an entry was made by a specialist four (SP4)/E-4 at the dispensary for a wound of the left knee due to shrapnel from an air strike.  Based on this entry, it is difficult to determine if the SP4 was annotating what he/she was told by the applicant or if the wound was such that it could definitely be determined that it was the result of an enemy air strike.
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:

1.  The applicant contends that he should be awarded of the Purple Heart.

2.  The applicant’s contentions and the document that he submitted were carefully considered.  However, it is not sufficient to award the Purple Heart.

3.  There is no evidence in his official record that shows he was wounded as a result of hostile action and a review of the Vietnam Casualty Roster fails to show that he was wounded.  Additionally, there are no published orders or other corroborating evidence contained in his records pertaining to the Purple Heart.  While the applicant contends that he refused the Purple Heart at the time of his injury, there is no substantiating evidence of record that show he was ever wounded as a result of hostile action or that he was recommended for or awarded the Purple Heart while he was in the Republic of Vietnam.

4.  In order to justify correction of a military record the applicant must show 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.

5.  In view of the foregoing, there is no basis for granting the applicant’s requested relief.

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)                                         AR20090010419



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ABCMR Record of Proceedings (cont)                                         AR20090010419



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