IN THE CASE OF:	  

		BOARD DATE:	    20 January 2010

		DOCKET NUMBER:  AR20090012884 


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.

2.  The applicant states that while assigned to a forward finance pay team he was flown in by helicopter to assist infantry troops on a 2-3 day stand-down.  He states that when they were trying to land they starting receiving incoming rounds and he was hit by a piece of hot metal that imbedded in his right cheek.  He states he was hospitalized for his shrapnel injury.  He states he was injured in April or May 1970.

3.  The applicant provides, in support of his application, copies of his Standard Form (SF) 93 (Report of Medical History), dated 27 March 1972; and his 
DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 31 July 1989.

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 military personnel records show he initially enlisted in the Regular Army (RA) on 4 April 1969 for a period of 3 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 73C (Finance Specialist).  He was released from active duty on 8 January 1972 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  He subsequently enlisted in the RA on 30 March 1972 and he continued to serve on active duty until his retirement on 31 July 1989 by reason of sufficient service for retirement.

3.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 8 January 1972 does not show he was awarded the Purple Heart.

4.  The applicant's complete military personnel records for his first enlistment, from 4 April 1969 to 8 January 1972, are not available for review.

5.  Item 5 (Oversea Service) of the applicant's DA Form 2-1 (Personnel Qualification Record) shows he was assigned in the Republic of Vietnam from 
24 October 1969 to 10 October 1970.  However, the units to which he was assigned were not available.

6.  An SF 600 (Chronological Record of Medical Care) in the applicant's service medical records contains an entry that on 27 October 1969 he was treated for abrasions on his right and left hand.  However, there is no entry showing how he received the injury.

7.  The SF 600 also contains an entry that on 29 January 1970 the applicant was treated for a small laceration to the right side of his face.  The entry indicates there was a moderate amount of swelling and he was prescribed 50mg of Benadryl for swelling.  However, there is no entry showing how he received the injury.

8.  On 31 July 1989, the applicant was retired and transferred to the Retired List the following day.  He had completed 20 years and 8 days of active duty service.  His DD Form 214 does not show he was awarded the Purple Heart.

9.  There are no orders in the applicant's military service records awarding him the Purple Heart.
10.  The applicant's name does not appear on the Vietnam Casualty Listing.

11.  The applicant's SF 93, dated 27 March 1972, contains a remark that he was hospitalized for a shrapnel wound to his right cheek in Vietnam.

12.  Army Regulation 672-5-1 (Military Awards), then in effect, provided that the Purple Heart was awarded to any member of an Armed Force or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. armed services had been wounded, killed, or who had died as a result of 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 by medical personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the Purple Heart.

2.  The applicant contends he received a shrapnel wound to his face when the helicopter he was in began receiving fire while attempting to land.

3.  The applicant's service medical records show he received treatment for a small laceration on the right side of his face.  His medical records also show he was treated for abrasions to his right and left hand.  However, there is no corroborating evidence that either of these injuries were received as a result of hostile action.

4.  There is no indication the examining physician had the applicant's service medical records from his previous period of service for review.  Therefore, it is reasonable to conclude the annotation on the applicant's physical, 2 years later, for shrapnel wound was based on a history of events provided by the applicant.  

5.  In the absence of military records which show that the applicant's injuries documented in his service medical records were received as a result of hostile action, there is insufficient evidence upon which to base award of the Purple Heart in this case.

6.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  There is no evidence of record and the applicant has failed to submit evidence that would satisfy that requirement.

7.  Based on the foregoing, there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  __X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to 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.



      _______ _   _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)                                         AR20090012884



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ABCMR Record of Proceedings (cont)                                         AR20090012884



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