IN THE CASE OF:	

		BOARD DATE:	  4 February 2010

		DOCKET NUMBER:  AR20090012852 


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 (PH).  

2.  The applicant states that after all of these years he has not been awarded the PH.  

3.  The applicant provides no additional documentary evidence 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 was inducted into the Army of the United States and entered active duty on 7 May 1970, and he was trained in and awarded military occupational specialty (MOS) 12B (Combat Engineer). 

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 20 October 1970 through 12 August 1971. Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company D, 20th Engineer Battalion (Combat), performing duties as a pioneer and combat engineer.  

4.  Item 40 (Wounds) of the applicant's DA Form 20 is blank and the PH is not included in the list of earned awards entered in item 41 (Awards and Decorations).  

5.  The applicant's Official Military Personnel File (OMPF) is 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.  It is also void of any medical treatment records or documents indicating he was ever treated for a wound he received as a result of or that was caused by enemy action.

6.  On 23 December 1971, the applicant was honorably released from active duty (REFRAD) after completing 1 year, 7 months, and 17 days of active military service.  The DD Form 214 he was issued at the time shows he earned the following awards during his active duty tenure:  National Defense Service Medal, Vietnam Service Medal, RVN Campaign Medal with Device (1960), 1 Overseas Service Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar.

7.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant's name was not included on this list.  Additionally, a 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 PH orders for the applicant.

8.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  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 military medical personnel; and this medical treatment must have been made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the PH was carefully considered.  However, there is insufficient evidence to support his claim.  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 a record of the 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, and the PH is also not included in the list of awards contained in Item 41.  Further, his OMPF is void of any medical treatment records that indicate he was ever treated for a combat-related wound or injury while serving in the RVN.  

3.  Finally, the applicant's name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  Absent any evidence of record confirming the applicant was wounded in action or 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.  Therefore, it would not be appropriate or serve the interest of all those who served in the RVN and faced similar circumstances to grant the requested relief 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 evidence that would satisfy this requirement related to award of the PH.   

5.  The applicant and all others concerned should know that this action 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)                                         AR20090012852



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ABCMR Record of Proceedings (cont)                                         AR20090012852



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