BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090014978 


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 (PH).

2.  The applicant states, in effect, that although he was told he would receive the PH for wounds he received in Vietnam, he never did receive the award.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of his application.

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 record shows he enlisted in the Regular Army on 4 April 1968. 
He was trained in and awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 21 April 1969 through 1 April 1971.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Company C, 1st Battalion (Airmobile), 502d Infantry, performing duties as a rifleman and grenadier.

4.  Item 40 (Wounds) of the applicant's DA Form 20 is blank and the PH is not included in the list of earned awards entered in item 41 (Awards and Decorations).

5.  On 5 April 1971, the applicant was honorably released from active duty after completing 3 years and 1 day of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he earned the following awards during his active duty tenure:  National Defense Service Medal, Air Medal, Bronze Star Medal, Army Commendation Medal, Vietnam Service Medal, RVN Campaign Medal with Device (1960), Combat Infantryman Badge, Expert Marksmanship Qualification Badge with Rifle (M-16) Bar, Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar, and four overseas service bars.

6.  The applicant's record contains a Veterans Administration Regional Office-Atlanta message, dated 262046Z AUG 71, requesting medical records regarding the applicant's right wrist injury in March 1970.  His record further contains a miscellaneous document which indicates the applicant broke his left arm resulting when a 1/4 ton truck overturned due to bad road conditions.

7.  The applicant's official military personnel file (OMPF) is void of any orders or other documents that indicate he was ever recommended for or awarded the PH by proper authority while serving on active duty.  It is also void of any medical treatment records or documents indicating he was ever treated for a wound he received as a result of or that was caused by enemy action.

8.  During the processing of this case, a staff of the Board reviewed the DA Vietnam casualty roster.  The applicant's name was not included on this list.  Additionally, a 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 PH orders pertaining to the applicant.

9.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains guidance on award of the PH.  It states, in pertinent part, that in order to support award of the PH, there must be evidence that the wound for which the award is being made was received as a result of enemy action, that it required treatment by military medical personnel, and this medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim that he was wounded in action and is eligible for the PH was carefully considered.  However, by regulation, in order to support award of the PH, there must be evidence that the member was wounded/injured as a result of enemy action, the wound required treatment by medical personnel, and a record of the medical treatment must have been made a matter of official record.

2.  Although the applicant's record contains documents showing he broke his left arm and injured his right wrist during his period of service in the RVN, there are no other documents on file or provided by the applicant that confirm these injuries were received as a result of enemy action.

3.  Item 40 of the applicant's DA Form 20 is blank and the PH is also not included in the list of awards contained in item 41.  Further, his OMPF is void of any medical treatment records that indicate he was ever treated for a combat-related wound or injury while serving in the RVN.

4.  Finally, the applicant's name is not included on the Vietnam casualty roster, the official DA list of RVN battle casualties.  Therefore, absent any evidence of record confirming the applicant was wounded in action or treated for a combat-related wound while serving in the RVN, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Therefore, it would not be appropriate or serve the interest of all those who served in the RVN and faced similar circumstances to grant the requested relief at this late date.

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 this requirement related to award of the PH.


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)                                         AR20090014978



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ABCMR Record of Proceedings (cont)                                         AR20090014978



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