IN THE CASE OF:	

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090014854 


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 suffered a gunshot wound to his left upper shoulder in Vietnam on 15 January 1968 and the unit medic was supposed to document the injury but he (the medic) was killed in action before they returned to the landing zone and that his platoon sergeant and platoon leader did not follow up. 

3.  The applicant provides a copy of a VA Form 10-5345 (Request and Authorization to Release Medical Records or Health Information), dated 10 August 2009, and a copy of a consult report, dated 24 April 2009, 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 for a period of 3 years on 6 July 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty 36K (Wireman).  He was honorably discharged on 11 June 1968 for the purpose of immediate reenlistment and executed a 3-year reenlistment on 12 June 1968.  

3.  The applicant’s records show he served in the Republic of Vietnam from on or about 30 August 1968 to 31 March 1970.  He was assigned to the 5th Battalion, 46th Infantry, 198th Infantry Brigade.

4.  He was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Standby Reserve) on 11 June 1971.

5.  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 Vietnam Campaign Medal, the Army Commendation Medal, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, the Combat Infantryman Badge, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

6.  Item 40 (Wounds) of the applicant’s DA Form 20 (Enlisted Qualification Record) contains no entry.  

7.  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.

8.  During the processing of this case, a member of the Board’s staff reviewed the Awards and Decorations Computer Assisted Retrieval System maintained by the Military Awards Branch of the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any Purple Heart orders on file for the applicant.  

9.  The applicant submitted a copy of a Physical Medicine and Rehabilitation Consultation Report, dated 24 April 2009 that shows he reported a knot in his left shoulder and related it to a gunshot wound in Vietnam.  He also submitted a copy of a VA Form 10-5345, dated 10 August 2009, in which he states that he suffered a shoulder injury in combat.
 
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 a 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 and his sincerity with respect to his injury 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 or treated for such wounds, or that his 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)                                         AR20090014854



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ABCMR Record of Proceedings (cont)                                         AR20090014854



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