IN THE CASE OF:	  

		BOARD DATE:	  20 January 2010

		DOCKET NUMBER:  AR20090014568 


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 he was assigned to the 2nd Security Police, 80th General Support Group, when one night while on duty, one of the sergeants mistakenly shot a boy who was attempting to go under the fence.  The next day, while on duty at his post, a large riot ensued and in confrontation with a known enemy person, who sold poison drugs outside the main gate, he was struck in the face with an object and he was ordered to the rear of the action due to bleeding.  He swears that this is the truth and he is willing to take a polygraph.  He concludes that he was informed he was put in for award of the Purple Heart by a first lieutenant, but that he left Vietnam before it was awarded.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 31 July 1971; copies of various photographs of personnel and equipment in Vietnam; a copy of Special Orders Number 292, issued by Headquarters, U.S. Army Support Command, Da Nang, Vietnam, on 19 October 1970, promoting him to specialist four (SP4)/E-4; and a copy of his DA Form 137 (Installation Clearance Record), dated 25 July 1971, in support of his request.

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 records show he enlisted in the Regular Army (RA) for a period of 3 years on 23 December 1968.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).  He was honorably released from active duty in the rank/grade of SP4/E-4 on 31 July 1971 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) for completion of his Reserve obligation.

3.  The applicant’s records show he served in the Republic of Vietnam from 
17 June 1970 to 26 July 1971.  He was assigned to various units, including Headquarters and Headquarters Company, 92nd Combat Support Battalion from 22 June 1970 through 9 July 1970; U.S. Army Support Command, Vietnam from 10 July 1970 through 3 November 1970; 56th Supply Company from 4 November 1970 through 21 February 1971; 560th General Supply Company from
22 February 1971 through 1 June 1971, and the 403rd Transportation Company from 2 June 1971 through 26 July 1971.

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, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and one overseas service bar.  Item 24 does not show award of the Purple Heart.

5.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) is blank.

6.  The applicant's name is not shown on the Vietnam Casualty Roster and there are no general orders in his records that show he was awarded the Purple Heart.



7.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), 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 pertaining to the applicant.

8.  The applicant's available medical records show he underwent a separation physical prior to his separation and indicated that there was no change to his physical condition.  Additionally, there is no record of a combat injury/wound or treatment for any injury/wound in his available medical records.

9.  The applicant submitted a copy of his promotion orders that show he was assigned to Headquarters and Headquarters Detachment, 2nd Security Company, U.S. Army Support Command, Da Nang.  He also submitted a copy of his clearance record as well as various photographs of personnel and/or equipment in Vietnam.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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 that he should be awarded the Purple Heart.

2.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for the decoration; rather an individual is entitled to it upon meeting specific criteria.  When contemplating an award of this decoration, the key issue that must be taken into consideration is the degree to which the enemy caused the injury.  The fact that a proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but it is not the sole justification for the Purple Heart.

3.  The applicant's service in Vietnam, his sincerity with respect to what occurred, and his willingness to take a polygraph are not in question.  However, there is no evidence in his service personnel records that shows he was wounded or injured as a result of hostile action, that he was treated for such wounds, or that his medical treatment was made a matter of official record.  Additionally, his name is not shown on the Vietnam casualty roster.  In the absence of documentation that 
shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base awarding him the Purple Heart.

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)                                         AR20090014568



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ABCMR Record of Proceedings (cont)                                         AR20090014568



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