BOARD DATE:	  26 January 2010

		DOCKET NUMBER:  AR20090011044 


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 correction of his records to show award of the Purple Heart (PH).

2.  The applicant states, in effect, he was awarded the Bronze Star Medal (BSM) with "V" Device and the PH while serving in the Republic of Vietnam (RVN); however, he did not receive documentation for his PH for the injuries he sustained.  He states he is providing a copy of the BSM citation as evidence of the appropriate time of his injury.  He claims to vividly remember the details of his wounding which took place during a helicopter landing on a hot landing zone while under an enemy mortar attack during which he sustained a shrapnel wound to his right lower arm.  He states that he was evacuated and the shrapnel was surgically removed.  He claims two scars from the wound are still visible.

3.  The applicant further states that shortly after being wounded, he received the PH from his platoon leader who indicated he would receive the citation when he left country.  He realizes now that he never received the citation.  He states that he never paid attention to the fact the citation did not appear on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); he was just proud of his PH.  He claims it was not until he registered for veterans' benefits earlier this year that he discovered that having a PH improves a veteran's priority status.

4.  The applicant provides the following documents in support of his application:  self-authored statement; DD Form 214; PH photograph; 1st Cavalry Division Vietnam Combat Certificate, dated October 1969; and BSM with "V" Device orders and certificate, dated 10 September 1969.

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 that he was inducted into the Army of the United States and entered active duty on 9 May 1968.  He was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman) and sergeant (SGT)/E-5 is the highest rank he attained while serving on active duty.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 6 October 1968 through 6 October 1969.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company C, 5th Battalion, 7th Cavalry Regiment, performing duties in MOS 11B as a rifleman, automatic rifleman, and squad leader.  Item 49 (Wounds) is blank and the PH is not included in the list of earned awards in item 41 (Awards and Decorations).

4.  The applicant's official military personnel file (OMPF) contains Headquarters, 1st Cavalry Division, General Orders Number 10992, dated 10 September 1969, which awarded the applicant the BSM with "V" Device for heroism in the RVN during the period 2 July 1969 through 6 July 1969.  The citation contained on the orders does not indicate the applicant was wounded during this action.

5.  The applicant's OMPF is void of any medical treatment records that show he was treated for a shrapnel wound while serving in the RVN.  It does contain a Standard Form 88 (Report of Medical Examination) and Standard Form 89 (Report of Medical History) which both contain entries that show the applicant had a fragment wound to his right forearm.  These forms fail to show the fragment wound to his right forearm was received as a result of enemy action.

6.  On 16 March 1970, the applicant was honorably released from active duty in the rank of SGT/E-5 after completing 1 year, 10 months, and 7 days of active military service.

7.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he earned the following awards during his active duty tenure:  National Defense Service Medal, Combat Infantryman Badge, Air Medal, RVN Campaign Medal with Device (1960), BSM with "V" Device, Vietnam Service Medal, two overseas service bars, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), Marksman Marksmanship Qualification Badge with Rifle Bar 
(M-16), and 1st Class Gunner Badge (M-60 Machinegun).

8.  During the processing of this case, a member of the Board staff reviewed the Department of the Army Vietnam casualty roster.  There is no entry indicating the applicant was wounded in action.

9.  Army Regulation 600-8-22 (Military Awards) contains the Army's military awards policy.  Paragraph 2-8 contains guidance on award of the PH and 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 military 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 the PH should be added to his DD Form 214 was carefully considered.  However, 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 military medical personnel, and that this medical treatment was made a matter of official record.

2.  In this case, the applicant's separation physical examination documents refer to a shrapnel wound to his right forearm; however, they fail to confirm this injury was received as a result of enemy action.  Further, there are no medical treatment records on file to show he was ever treated for a combat-related shrapnel wound by military medical personnel while serving in the RVN.

3.  Further, item 40 of the applicant's DA Form 20 is blank which indicates he was never wounded in action, the PH is not included in the list of awards in item 41, and it is not included in the list of awards contained on his DD Form 214.  In addition, his BSM with "V" Device citation fails to indicate he was wounded during this action.  Finally, his name is not included on the Vietnam casualty roster, the official list of RVN battle casualties.

4.  Absent any evidence confirming the shrapnel wound referred to in his separation physical examination documents was received as a result of enemy action or that shows the applicant ever received a wound as a result of enemy action that required and was treated by military medical personnel, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.

5.  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.  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)                                         AR20090011044



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ABCMR Record of Proceedings (cont)                                         AR20090011044



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