IN THE CASE OF:	

		BOARD DATE:	  16 March 2010

		DOCKET NUMBER:  AR20090015419 


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 he served in Vietnam during 1967 through 1968, and he was stationed at Cu Chi when his ears and hearing were damaged.  He was sent back to group headquarters at Long Binh in May 1967 to finish his tour.  He returned to Vietnam in 1970 and he was there approximately 5 months with the 101st Airborne Division.  He was sent back to the United States because of his hearing.  He states the damage to his ears and hearing has been rated as combat-related.

3.  The applicant provides a copy of Headquarters, U.S. Army Human Resources Command, Combat-Related Special Compensation Branch, Alexandria, Virginia, memorandum, dated 6 August 2009.

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 was inducted into the U.S. Army and entered active duty on
4 June 1956.  Upon completion of training he was awarded military occupational specialty 941 (Cook).  He continued to serve on active duty until he was honorably retired on 30 June 1982.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

   a.  item 31 (Foreign Service) he was assigned to the Republic of Vietnam (RVN) from 27 April 1967 through 26 April 1968 and from 5 January through
1 June 1971;

   b.  item 38 (Record of Assignments) he was assigned to the:

       (1)  91st Maintenance Company (RVN) from 30 April through 11 May 1967;

       (2)  29th General Support Group (RVN) from 12 May 1967 through 26 April 1968; and

       (3)  Company B, 326th Engineer Battalion (Airmobile), 101st Airborne Division (RVN), from 21 January through 30 May 1971.

   c.  item 40 (Wounds) is blank; and

   d.  item 41 (Awards and Decorations) does not show award of the Purple Heart.

4.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant entered active duty this period on 13 September 1962 and he was honorably discharged on 12 September 1968.  His DD Form 214 also shows in:

	a.  Item 22 (Statement of Service) he completed 1 year, and 16 days, of foreign service; and 

	b.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the National Defense Service Medal, Good Conduct Medal (3rd Award), Expert Marksmanship Qualification Badge with (M-16) Rifle Bar, Vietnam Service Medal, and Republic of Vietnam Campaign Medal.

5.  A DD Form 214 (Report of Separation from Active Duty) shows the applicant entered active duty this period on 13 September 1968 and he was honorably discharged on 10 September 1974, it also shows in:  

	a.  Item 18 (Record of Service) he completed 1 year, 5 months, and
25 days of foreign service; and 
 
	b.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) the National Defense Service Medal, Army Commendation Medal, Vietnam Service Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Republic of Vietnam Campaign Medal with Device 1960, Armed Forces Expeditionary Medal, Meritorious Unit Commendation, and Good Conduct Medal (6th Award).

6.  There is no evidence in the applicant's military personnel records that shows he was wounded or treated for wounds as a result of hostile action or that he was awarded the Purple Heart.

7.  A review of The Adjutant General, Casualty Division's, Vietnam Casualty Roster, confirmed the applicant's name is not on the roster.

8.  A search of the U.S. Army Human Resources Command, Awards and Decorations Computer Assisted Retrieval System for the Vietnam Conflict failed to produce orders showing the applicant was awarded the Purple Heart.

9.  In support of his application, the applicant provides a copy of his Combat-Related Special Compensation (CRSC) decision letter that shows his disabilities of impaired hearing (0%) and tinnitus (10%) were verified as combat-related, effective January 2004.

10.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.  This regulation provides that the Purple Heart is awarded for a wound sustained 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 his records should be corrected to show award of the Purple Heart because his ears and hearing were damaged in May 1967 and his disabilities have now been rated as combat-related.

2.  The applicant's claim was carefully considered.  The applicant provides no timely official documentary evidence pertaining to the injury (e.g., casualty report, medical treatment records, etc.) in support of his claim.  Moreover, the fact that the applicant was awarded CRSC for a combat-related disability does not entitle him to the Purple Heart.  

3.  There is no evidence in the applicant's military service records that shows he was wounded as a result of hostile action, that such wound required treatment, or that the medical treatment was made a matter of official record.  In addition, the applicant's name is not listed on the Vietnam Casualty Roster.  Therefore, there is insufficient evidence to support award of the Purple Heart in this case.

4.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.


2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   _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)                                         AR20090015419



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ABCMR Record of Proceedings (cont)                                         AR20090015419



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