BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090011958 


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 the Purple Heart (PH).

2.  The applicant states, in effect, the armored personnel carrier (APC) he was operating while in the Republic of Vietnam (RVN) was destroyed when it hit a mine and he incurred injuries for which he was treated.  As a result, he states that he is deserving of the PH.

3.  The applicant provides a third-party electronic mail message witness statement, a copy of a situation report, a copy a letter the applicant sent to his sister on 17 June 1967, and a photograph of a damaged APC 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 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 he enlisted in the Regular Army on 12 June 1962 and he was awarded, held, and served in military occupational specialty (MOS) 133.10 (Armored Crewman) and MOS 11D (Armor Intelligence Specialist). 

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows that he served in the RVN from 21 July 1966 through 15 July 1967.  Item 38 (Record of Assignments) shows that during his RVN tour he was assigned to Troop B, 1st Squadron, 10th Calvary, 4th Infantry Division.

4.  Item 40 (Wounds) of the applicant's DA Form 20 is blank and item 41 (Awards and Decorations) does not include the PH in the awards listed.  His record is void of any orders or other documents that show he was ever recommended for or awarded the PH by proper authority.

5.  On 16 July 1967, the applicant was honorably released from active duty (REFRAD) in the rank of sergeant after completing 5 years and 14 days of active military service.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued on the date of his REFRAD shows he earned the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and the Expert Marksmanship Qualification Badge with Pistol Bar.  The PH is not included in the list of awards contained on the DD Form 214.

6.  During the processing of this case, a member of the Board staff reviewed the DA Vietnam casualty roster.  No entry pertaining to the applicant was found on this list of RVN casualties.  

7.  The applicant's record contains two DD Forms 735 (Health Record - Abstract of Service) which show he was treated at an aid station on nine separate occasions during the period 18 June 1962 to 14 March 1967.  There is no entry showing the applicant was treated on 28 May 1967.

8.  The applicant provides a situation report for 28 May 1967 from the 1st Battalion, 10th Calvary, which shows that an APC was heavily damaged when it hit a mine.  It further shows that the mine explosion created a crater 7 1/2 feet wide and 5 feet deep and that there was one Soldier wounded but not evacuated from the area.  The report does provide the identity of the wounded Soldier.

9.  A witness statement provided by the gunner of a B-14 tank essentially states he was immediately behind the applicant's APC when it hit the mine and sustained major damage.  He further states that a medic treated the applicant for injuries sustained in the mine explosion and that the medic filled out a medical card of some kind.

10.  The applicant provides a photograph of a damaged APC with a large hole located to the right rear of the APC.  The photograph includes the handwritten caption "113 Personnel Carrier I was on May 28, 1967, hit mine."

11.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to 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 the wound 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 is entitled to the PH based on wounds he sustained as a result of a mine explosion in the RVN on 28 May 1967 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 the wound required treatment by military medical personnel, and a record of this medical treatment must have been made a matter of official record.

2.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action.  The PH is also not included in the list of awards contained in item 41.  His record is also void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty.

3.  The applicant's record did contain some medical treatment records; however, they failed to show that he was treated for a combat-related wound on 28 May 1967 or at anytime while serving in the RVN.

4.  Further, the applicant's name is not included on the Vietnam casualty roster, the official DA list of RVN battle casualties.  Therefore, although the sincerity of the applicant's account of what occurred on 28 May 1967 or the witness statement he provided are not in question, absent any evidence of record confirming he was treated for a combat-related wound while serving in the RVN, 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 related to award of the PH.

6.  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)                                         AR20090011958



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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