IN THE CASE OF:	

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090015011 


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, award of the Purple Heart and Silver Star.

2.  The applicant states he was medically retired due to combat injuries he sustained in the Republic of Vietnam. 

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and Standard Form 502 (Clinical Record).

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 entered active duty 11 April 1967. He completed basic training and advanced individual training and was awarded military occupational specialty 11B (Rifleman).  
3.  The applicant served a tour of duty in the Republic of Vietnam during the period 6 October 1967 through 2 February 1968.

4.  Item 24 (Decoration, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 does not show award of the Purple Heart.

5.  There are no medical records in the applicant's official military personnel file which indicate he sustained wounds as a result of hostile action or that show he was treated for wounds sustained as a result of hostile action.  There are no general orders in the applicant's records to indicate he was awarded the Purple Heart.

6.  The applicant's name does not appear on the Vietnam Casualty Roster.

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

8.  The DA Form 2173 (A Statement of Medical Examination and Duty Status), dated 11 November 1968, indicates the applicant's injuries resulted from a jeep accident in Okinawa.  In effect, the applicant lost control of the jeep while managing a curve and hit a security fence.  Item 25 (Injury) shows the following:

	a.  Compound Fracture, Left Femur, Left leg caught in between vehicle and fence
	b.  Crushed Knee Cap,	Left Leg, Left leg caught in between vehicle and fence
	c.  Broken Ankle, Left leg, Left leg caught in between vehicle and fence 

9.  The initial Physical Evaluation Board (PEB) proceedings, dated 30 July 1969, placed the applicant on the Temporary Disability Retired List and reflect his disability resulted from injury or disease received in Line of Duty (LOD) as a direct result of armed conflict or caused by an instrumentality of war and incurred in the Line of Duty during a period of war as define by law.  

10.  The medical records provided by the applicant as a basis for his medical retirement reference injuries and a time period identical to injuries and a time period documented in the LOD investigation.  However, the LOD shows the injuries occurred in Okinawa as the result of a vehicle accident and not in the Republic of Vietnam as result of combat.

11.  The applicant was medically retired on 28 August 1969.  The applicant's DD Form 214 shows he completed 2 years, 4 months, and 18 days of active duty service.

12.  On 15 August 1969, the applicant received a favorable LOD determination.  

13.  Item 24 (Decoration, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 does not show award of the Silver Star.

14.  The records in the applicant's official military personnel file indicate he performed no acts of gallantry and there are no general orders in the applicant's records to indicate he was awarded the Silver Star.

15.   Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, 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, and the medical treatment must have been made a matter of official record.  This regulation also provides that there are no time limitations for requests for award of the Purple Heart.

16.  Army Regulation, 600-8-22 (Military Awards) provides, in pertinent part, the Silver Star is awarded to a person who, while serving in any capacity with the U.S. Army, is cited for gallantry in action against an enemy of the United States while engaged in military operations involving conflict with an opposing foreign force, or while serving with friendly foreign forces engaged in armed conflict against an opposing armed force in which the United States is not a belligerent party. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for award of the Purple Heart and Silver Star was carefully considered and determined to lack sufficient evidence.  

2.  There are no orders in the applicant's service personnel records which indicate he was awarded the Purple Heart. The applicant's medical records, PEB findings and LOD determination clearly support the fact his wounds were a result of a vehicle accident in Okinawa and not sustained as a result of hostile action.   

3.  The record is absent evidence which shows the applicant sustained wounds as a result of hostile action or that he was treated for such wounds.  Therefore, there is no basis to grant the applicant's request for award of the Purple Heart in this case.

4.  There is no evidence the applicant was recommended for award of a Silver Star or that he performed any acts of gallantry in action against an enemy of the United States while engaged in military operations involving conflict with an opposing foreign force, or while serving with friendly foreign forces engaged in armed conflict against an opposing armed force in which the United States is not a belligerent party.  Therefore, there is no basis to grant this award. 

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)                                         AR20090015011



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ABCMR Record of Proceedings (cont)                                         AR20090015011



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