IN THE CASE OF:	  

		BOARD DATE:	 2 March 2010

		DOCKET NUMBER:  AR20090014361 


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 for wounds he received in the Republic of Vietnam.

2.  The applicant states he was not issued his Purple Heart and it does not appear on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 21 July 1970.

3.  The applicant provides, in support of his application, copies of his DD Form 214 and two pages of his Department of Veterans Affairs (VA) monthly entitlement amount letter, dated 30 July 2009.

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 22 July 1968.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant was assigned to the 3rd Battalion, 1st Infantry, 11th Infantry Brigade in the Republic of Vietnam during the period 9 January 1969 to 
5 January 1970.

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

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

6.  On 21 July 1970, the applicant was honorably released from active duty by reason of the expiration of his term of service.  He had completed 2 years of total active service during this period.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 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 listing.

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

10.  The applicant's VA monthly entitlement amount letter states the VA determined that a scar, residual of shell fragment wound to the calf of the left leg, was related to his military service and awarded him a 10 percent disability rating. The letter does not address whether or not the injury was a result of hostile action.

11.  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 for the Purple Heart for the applicant.


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.

13.  Title 38, U.S. Code, provides for the VA to make a determination and award compensation for disabilities which were incurred in or aggravated by active military service.  The VA does not make any determination as to whether an injury was received as a result of hostile action.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the applicant's official military personnel file showing he was wounded or treated for wounds resulting from hostile action.

2.  The VA rating decision, submitted by the applicant, determined that a scar, a residual of a shell fragment wound, on the calf of his left leg was incurred while in the military service.  However, this decision does not determine nor is it intended to determine whether the applicant's wound was a result of hostile action.

3.  In the absence of military records which show that 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.

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 that requirement.

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)                                         AR20090014361



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ABCMR Record of Proceedings (cont)                                         AR20090014361



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