IN THE CASE OF:	  

		BOARD DATE:	  17 February 2010

		DOCKET NUMBER:  AR20090013710 


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 he should have been awarded the Purple Heart for wounds received during severe attacks in the Republic of Vietnam.

3.  The applicant provides in support of his application copies of a statement from a fellow Soldier and three pages of notes entitled "Rickie's notes NAM."

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 was inducted into the Army of the United States on 16 April 1968.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 11B (Light Weapons Infantryman).

3.  The applicant served in the Republic of Vietnam from on or about                 23 September 1968 to 11 September 1969 and he was assigned to the 1st Battalion, 46th Infantry, 198th Infantry Brigade.

4.  On 15 April 1970, the applicant was released from active duty by reason of expiration term of service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 does not show he was awarded the Purple Heart.

5.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not contain an entry indicating the applicant received any wounds.

6.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not show the award of the Purple Heart.

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

8.  The applicant's name does not appear on the Vietnam Casualty List, a compilation of all casualties during the Vietnam War.

9.  The applicant's service medical records were not available for review.

10.  In a statement, dated 25 June 2009, submitted by the applicant, a fellow Soldier stated he was with the applicant on the evening of 14 May 1969 when their positions were attacked by enemy forces.  The Soldier described in detail small arms fire, recoilless rifle rounds, mortar rounds, and rockets being fired at their positions.  The Soldier stated a rocket hit the corner of their bunker and they all sustained severe shrapnel wounds.  The Soldier stated that he and the applicant were flown to Da Nang where he received treatment for his wounds but the applicant refused treatment.  The Soldier stated the applicant never received a Purple Heart for the wounds he received that night.

11.  The three pages entitled "Ricki's notes NAM" described actions and listed casualties suffered by the applicant's unit during the period 11 May to 14 May 1969.  These pages listed the Soldier who submitted the previous statement as having been wounded in action on 11 May 1969.  The applicant's name is not listed as having been wounded in action during the entire period. 

12.  Army Regulation 672-5-1 (Military Awards), then in effect, provided in pertinent part 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 a medical officer, 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 for wounds he received in the Republic of Vietnam.

2.  There is no evidence in the applicant's official military personnel file showing he was wounded or treated for wounds resulting from hostile action.  His service medical records were not available for review and his name does not appear on the Vietnam Casualty Listing.

3.  The information provided in the third party statements provided by the applicant was carefully considered.  The statement from the fellow Soldier indicates the applicant refused treatment for his wound.  The regulation provided that a wound must have required treatment by a medical officer and the medical treatment must have been made a matter of official record for the award of the Purple Heart.  Therefore, the applicant does not meet the criteria for the award of the Purple Heart.

4.  In the absence of military records which show the applicant was wounded or treated for wounds resulting from hostile action, there is insufficient evidence upon which to base award of the Purple Heart 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 that requirement.

6.  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.


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)                                         AR20090013710



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ABCMR Record of Proceedings (cont)                                         AR20090013710



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