IN THE CASE OF:	

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090015004 


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 while serving in the Republic of Vietnam (RVN) during the period 1967 through 1968 he sustained injuries during combat action and received battlefield medical treatment.  He further states he was unaware that his records were incomplete and did not reflect his PH until he was being rated by the Veterans Administration (VA).  

3.  The applicant provides his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) and a VA Rating Decision, dated 6 March 2007 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 show he initially enlisted in the Army National Guard and served on active duty during the period 25 May through 24 November 1962.

3.  The applicant's record shows he enlisted in the Regular Army (RA) and entered active duty on 16 November 1965 and continually served until being honorably discharged on 6 June 1967.  His record does not include a DD Form 214 documenting this period of service.

4.  On 7 June 1967, the applicant reenlisted in the RA and served during the following periods:  7 June 1967 through 5 June 1970; 10 November 1970 through 25 January 1971; and 26 January 1971 through 27 December 1972.

5.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served two tours in the RVN from approximately 19 October 1967 through 10 October 1968 and from 13 April through approximately 15 August 1971.  Item 38 (Record of Assignments) shows that during his first tour in the RVN he was assigned to Battery D, 5th Battalion, 2nd Artillery Regiment and that during his second tour he was assigned to Battery G, 65th Artillery Regiment, performing duties as a squad leader/section leader.

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

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 that was caused by enemy action.

8.  On 27 December 1972, the applicant was issued a general discharge, under honorable conditions after completing a total of 10 years, 1 month, and 26 days of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his combined DD Forms 214 shows he earned the following awards during his active duty tenure:  National Defense Service Medal, Vietnam Service Medal with 
1 silver service star and 1 bronze service star, Republic of Vietnam Campaign Medal with Device 1960, Vietnam Gallantry Cross with Palm Unit Citation, Army Good Conduct Medal, 2 Overseas Service Bars, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  

9.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (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 (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 PH orders pertaining to the applicant.

10.  The applicant provides a VA Disability Rating, dated 6 March 2007.  This document shows the VA granted the applicant service-connection for the following:  10 percent (%) disability rating for residuals shrapnel wound, right shoulder, 0% percent disability rating for residual shrapnel wound right flank, and 0% disability rating for residuals shrapnel wound, proximal interphalangeal joint of the right 5th finger.  

11.  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 must have required treatment by medical personnel, and a record of the medical treatment must have been made a matter of official record.

2.  Although the VA rated the applicant with a 10% disability for his residual shrapnel wound, right shoulder, 0% percent for residual shrapnel wound right flank, and 0% for residual shrapnel wound proximal of the interphalangeal joint of the right 5th finger there are no other documents on file or provided by the applicant that show these injuries were received as a result of enemy action or that they required treatment by medical personnel during his active duty tenure.

3.  Item 40 of the applicant's DA Form 20 is blank, which indicates he was never wounded in action, 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, the applicant's request for award of the PH cannot be granted 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)                                         AR20090015004



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ABCMR Record of Proceedings (cont)                                         AR20090015004



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