IN THE CASE OF:	  

		BOARD DATE:	    23 February 2010

		DOCKET NUMBER:  AR20090014545 


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, in effect, correction of his records to show award of the Purple Heart.

2.  The applicant states he was injured in July 1970 during a mortar attack while serving in Vietnam.  He adds the injury is considered service connected by the Department of Veterans Affairs (VA).

3.  The applicant provides, in support of his application, a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a third-party letter, dated 18 January 1993.  The letter is from [then] Sergeant R__ M______, who was stationed at Chu-Lie (RVN) with the 3rd Battalion, 
16th Artillery, and he served with the applicant from June 1970 through May 1971.  Mr. M_______ states, "[the applicant] came to our base camp for treatment of back injuries he suffered after a mortar attack on Bravo or Charlie Company."  He adds this happened during the month of July 1970 and the applicant spent
3 days recovering with him.

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 enlisted in the Regular Army for a period of 2 years on 24 June 1969.  Upon completion of training, he was awarded military occupational specialty 13A (Field Artillery Crewman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

   a.  item 31 (Foreign Service) he was assigned to the Republic of Vietnam (RVN) from 29 November 1969 through 3 November 1970;

   b.  item 38 (Record of Assignments) that he was assigned to:

       (1)  Battery B, 1st Battalion, 7th Artillery, 1st Infantry Division (RVN), from  8 December 1969 through 8 March 1970;

       (2)  23rd Administration Replacement Detachment (RVN) from 9 March through 16 March 1970; and

       (3)  Battery A, 3rd Battalion, 16th Artillery (RVN), from 17 March through    2 November 1970;

   c.  item 40 (Wounds) is blank; and

   d.  item 41 (Awards and Decorations) does not show award of the Purple Heart.

4.  A Standard Form (SF) 88 (Report of Medical Examination), dated 25 January 1971, completed during the applicant's separation medical examination shows in the Clinical Evaluation section, item 38 (Spine, Other Musculoskeletal), that the examining physician placed a checkmark in the "Normal" column.  Item 73 (Notes and Significant or Interval History) fails to show an entry related to a back injury.  The applicant placed his signature on this document indicating he had reviewed this document.  The SF 88 also shows that the examining physician and approving authority each placed their signature on this document.



5.  The applicant's DD Form 214 shows he was honorably released from active duty on 30 June 1971 and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining Reserve obligation.  At the time he had completed 2 years of net active service and 11 months and 6 days of foreign service.  The DD Form 214 also shows in item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) the National Defense Service Medal, Vietnam Service Medal with two bronze service stars, Republic of Vietnam Campaign Medal, Army Commendation Medal, Bronze Star Medal, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

6.  There is no documentation in the applicant's military personnel records that show he was wounded or treated for wounds as a result of hostile action.

7.  A review of The Adjutant General, Casualty Division's, Vietnam Casualty Roster, confirmed the applicant's name is not on the roster.

8.  A search of the U.S. Army Human Resources Command, Awards and Decorations Computer Assisted Retrieval System (ADCARS) for the Vietnam Conflict failed to produce orders showing the applicant was awarded the Purple Heart.

9.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.  This regulation provides that the Purple Heart is awarded for a wound sustained as a result of hostile action.  It provides that 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 that his records should be corrected to show award of the Purple Heart because he was injured during a mortar attack in July 1970 while serving in Vietnam.

2.  The applicant's claim was carefully considered.  In his request the applicant claims he injured his back on an unknown date in July of 1970 in the RVN, and he provides a letter from a comrade that was written more than 22 years later in support of his request.  The letter does not indicate that the comrade was an eyewitness to the incident.  The applicant's comrade states the mortar attack was on a unit that the applicant was not assigned to at the time.  Moreover, the applicant provides no official documentary evidence pertaining to the injury (e.g., casualty report, medical treatment records, etc.) in support of his claim.

3.  There is no evidence in the applicant's military service records that shows he was wounded as a result of hostile action, that such wound required treatment, or that the medical treatment was made a matter of official record.  In addition, the applicant's name is not listed on the Vietnam Casualty Roster.  Therefore, in view of the foregoing, the third party statement alone is insufficient to award the applicant 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 this 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)                                         AR20090014545



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ABCMR Record of Proceedings (cont)                                         AR20090014545



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