IN THE CASE OF:	  

		BOARD DATE:	  12 January 2010

		DOCKET NUMBER:  AR20090013271 


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 and its addition to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states that while serving in Vietnam on a combat helicopter he was hit by an exploding round in his right arm on 21 July 1969.  He was flown back to base camp for medical attention and patched up.  The company medic stated that he would submit a Purple Heart medal request for the injuries.  This happened approximately 1 month before his discharge in August 1969.  He further states that this award was not added to his DD Form 214 and when he followed up, he was advised that there was no record for this award.  A representative of the Veterans Assistance Commission requested a copy of his medical records and found a medical report for his injuries from combat.  It was suggested he follow through with a change to his DD Form 214.  While it has been years since his discharge, this should not change the fact that he served his country in a difficult time and he believes he should not be another Vietnam veteran forgotten or denied what he earned because of his negligence in waiting so long to apply.

3.  The applicant provides copies of his 1967 to 1968 DA Form 2658 (Heath Record – Abstract of Service), his 1969 Standard Forms 600 (Chronological Record of Medical Care), his DD Form 214, and page 2 of his Department of Veterans Affairs (VA) Rating Decision 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 military records show he was inducted into the Army of the United States on 30 August 1967.  He completed training and was assigned military occupational specialty 67N (Crew Chief Helicopter).  He served in Vietnam from 27 January 1969 to 15 August 1969.

3.  The applicant was honorably released from active duty in pay grade E-5 on 17 August 1969 as an overseas returnee and transferred to the U.S. Army Reserve Control Group (Annual Training).  He was credited with 1 year, 11 months, and 18 days of net active service.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, and one overseas service bar.  The Purple Heart is not shown on his DD Form 214.

5.  There is no entry in item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) showing he was wounded in action as a result of hostile enemy action.  Item 41 (Awards and Decorations) of his DA Form 20 contains no entry showing he was awarded the Purple Heart.

6.  There are no orders in the applicant's military personnel records awarding him the Purple Heart.

7.  The Vietnam casualty list was reviewed to determine if the applicant had been wounded in action while he served in Vietnam.  The applicant's name is not shown in this list.

8.  A search of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS) was made for orders awarding the applicant the Purple Heart.  No orders for this award were found in ADCARS.

9.  The applicant submitted copies of his Standard Forms 600 for the period from May through August 1969 that show he received medical treatment for removal of a piece of metal from an exploding wound on 21 July 1969.  There is no evidence of record confirming this injury was the result of hostile action.

10.  The applicant also submitted a copy of page 2 of his VA Rating Decision that stated his service medical records showed he was treated in July 1969 for a metal fragment wound to the right arm after an exploding round hit him.  The metal fragment was removed and he was returned to duty.  A VA examination on 31 March 2009 showed he had two small scars on the dorsal aspect of his right forearm.  He was granted an evaluation of zero percent for service-connected disability for right forearm scars.

11.  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 by medical personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of entitlement to the Purple Heart and the supporting evidence provided were carefully considered.  However, by regulation, in order to support award of the Purple Heart, there must be evidence confirming that the wound for which the award is being made was received as a direct result of or was caused by enemy action, that the wound was treated by medical personnel, and a record of this treatment must have been made a matter of official record.

2.  The applicant submitted evidence showing he was medically treated for a metal fragment wound to his right arm on 21 July 1969.  However, the applicant provided no evidence to show that he was wounded as a result of hostile action.

3.  The evidence of record contains no orders or other documents confirming that the applicant's injury was caused by his participation in direct or indirect combat operations while serving in Vietnam.  The applicant's name does not appear on the Vietnam casualty list.  There were no entries made in his service personnel records to show he was wounded as a result of hostile action.

4.  Therefore, absent corroborating evidence confirming the applicant's contentions (chain of command supporting letters, etc.), the regulatory burden of proof necessary to support award of the Purple Heart 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.  Based on the evidence in this case, the applicant is not entitled to award of the Purple Heart and its addition to his DD Form 214.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090013271



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ABCMR Record of Proceedings (cont)                                         AR20090013271



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