IN THE CASE OF:	  		

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090011242 


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, that deceased husband, a former service member (FSM) be awarded the Purple Heart (PH).

2.  The applicant states, in effect, the FSM was shot in the right leg when his helicopter was shot down in the Republic of Vietnam (RVN) and he never received the PH for this wound.  She claims he always walked with a limp as a result of this wound.

3.  The applicant provides a certified copy of marriage record, the FSM's State of Georgia Certificate of Death, and the FSM's U.S. Army Reserve (USAR) discharge orders and certificate in support of her 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 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 FSM's record shows he was inducted into the Army of the United States and he entered active duty on 23 November 1965.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).

3.  The FSM's DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 3 December 1966 through 1 December 1967.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to the Air Cavalry Troop, 11th Armored Cavalry Regiment, performing duties in MOS 11B as a light weapons infantryman and door gunner.

4.  Item 40 (Wounds) of the FSM's DA Form 20 is blank and item 41 (Awards and Decorations) does not include the PH in the list of awards it contains.

5.  The FSM's Official Military Personnel File (OMPF) is void of any order or other documents that indicate the applicant was ever recommended for or awarded the PH while serving on active duty.  It is also void of any medical treatment records that indicate he was ever treated for a combat-related wound while serving in the RVN.

6.  On 2 December 1967, the FSM was honorably released from active duty, in the rank/grade of specialist four (SP4)/E-4, after completing 1 year, 11 months, and 21 days of creditable active military service.  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 following awards during his active duty tenure:  Marksman Marksmanship Qualification Badge with Rifle Bar, National Defense Service Medal, Vietnam Service Medal, Aircraft Crewman Badge, Air Medal, and the Army Good Conduct Medal.

7.  During the processing of this case, a member of the Board staff reviewed the Department of the Army Vietnam Casualty Roster.  There was no entry pertaining to the FSM on this roster.

8.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards policy.  Paragraph 2-8 contains guidance on award of the PH.  It 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 medical personnel; and a record of the medical treatment must have been made a matter of official record. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the FSM was wounded in action in the RVN and should have been awarded the PH 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 medical personnel; and a record of the medical treatment must have been made a matter of official record.

2.  The evidence of record is void of any documents or orders that indicate the FSM was ever wounded in action, or that he was ever awarded the PH by proper authority while serving on active duty.  Item 40 of his DA Form 20 is blank, and the PH is not included in item 41.  The PH is also not included with the list of awards contained on the FSM's DD Form 214.  Further, his name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.

3.  Absent any evidence of record to corroborate the applicant's claim that the FSM was wounded in 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.  Therefore, it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to award the FSM the PH at this late date.

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 any evidence or argument that would satisfy this requirement.

5.  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 FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of the FSM's 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)                                         AR20090011242



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ABCMR Record of Proceedings (cont)                                         AR20090011242



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