BOARD DATE:	  15 December 2009

		DOCKET NUMBER:  AR20090012653 


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 military records to show award of the Purple Heart for wounds sustained in the Republic of Vietnam.

2.  The applicant states that he received injuries to his mouth during a mortar attack on 5 May 1968.  When asked if he wanted to receive a Purple Heart, he declined because he did not feel deserving enough for the award.  However, his injuries resulted in the removal of eight teeth and he would now like to receive the Purple Heart to which he is rightfully entitled.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); Daily Staff Journal, dated 5 May 1968; letter of support from his former battalion commander; extract of his dental records; and a letter from the National Personnel Records Center, dated 1 June 2009 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.  On 8 May 1967, the applicant enlisted in the Regular Army of the United States for 3  ears.  He completed his initial training and was awarded military occupational specialty 71H (Personnel Specialist).

3.  On 29 September 1967, the applicant was assigned to Headquarters and Headquarters Company, 3rd Battalion, 1st Infantry Regiment, 11th Infantry Brigade, in the Republic of Vietnam.

4.  The Americal Division Tactical Operations Center Daily Staff Journal, dated 5 May 1968, reports that Landing Zone Liz came under attack at 0340, receiving explosive-type charges.

5.  The extracts of dental records provided by the applicant show that he underwent a series of dental procedures that included extractions, surgeries, and dentures commencing on 25 May 1968 and continuing for several months.

6.  On 1 December 1968, the applicant departed the combat theater for duty at Fort Benning, Georgia.

7.  On 7 May 1970, the applicant was released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement).  He had attained the rank of specialist five and had completed 3 years of creditable active duty service.

8.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 lists his awards as the National Defense Service Medal, Vietnam Service Medal with two bronze service stars, Vietnam Campaign Medal with Device (1960), and Expert Marksmanship Qualification Badge with Rifle Bar.  It does not show award of the Purple Heart.

9.  Review of the Awards and Decorations Computer Assisted Retrieval System, 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 awarding the applicant the Purple Heart.

10.  The applicant’s name is not listed on the Vietnam casualty roster.
11.  Item 40 (Wounds) of the applicant’s Enlisted Qualification Record (DA Form 20) is blank.

12.  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, and the medical treatment must have been made a matter of official record.

13.  On 1 January 2006, the applicant's former battalion commander wrote a letter in which he stated that during the early morning hours on 5 May 1968 the battalion headquarters came under mortar attack.  He remembered talking with the applicant [at that time] and asking him about the direction from which the mortar rounds were coming.  The commander remembers that the applicant had an injury to his face.  In his opinion, the applicant was wounded in action and is deserving of the Purple Heart.

14.  The letter from the National Personnel Records Center provided by the applicant, dated 1 June 2009, reports that a records search failed to identify the applicant for any type of incident [while] under attack.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was wounded in action and should be awarded the Purple Heart for his injuries.

2.  There are no available general orders showing the applicant was awarded the Purple Heart.  His name is not listed on the Vietnam casualty roster.  The evidence provided by the applicant shows that he had an injury to his face on the same morning that an enemy attack occurred on his headquarters.  He further provides evidence of extensive dental treatment that began 3 weeks later.  Unfortunately, none of the evidence is sufficient to prove that the applicant was treated for injuries that were the result of enemy action.  Therefore, his request for award of the Purple Heart should be denied.



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)                                         AR20090012653



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ABCMR Record of Proceedings (cont)                                         AR20090012653



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