IN THE CASE OF:	

		BOARD DATE:	  18 February 2010

		DOCKET NUMBER:  AR20090015678 


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 for wounds he received while serving in the Republic of Vietnam.

2.  The applicant states, in effect, that no one was in the field at the time to write up his award for the Purple Heart.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the U.S. Report of Transfer or Discharge) for the period ending 28 March 1972; a letter from the Veterans Administration (VA), dated 13 June 1975; copies of multiple VA Rating Decisions, dated 18 September 1973, 23 May 1997, and 26 July 1997; and a VA Appeals Transcript, dated 25 October 1996, 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 enlisted in the Regular Army on 1 December 1965.  He successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty (MOS) 36C (Lineman).  He reenlisted on 16 December 1966 and again on 17 February 1969 without a break in service. He was also awarded MOS 13A (Cannon Crewmember).

3.  Item 31 (Foreign Service) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he served two tours in U.S. Army Pacific-Vietnam.  His first tour was from 17 February 1967 to 16 February 1968 and his second tour was from 1 May 1969 to 4 April 1970.

4.  Item 40 (Wounds) of the applicant's DA Form 20 does not contain an entry to show he was wounded during his tenure of service.

5.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not show award of the Purple Heart.

6.  On 28 March 1972, the applicant was honorably discharged from active duty.  Records show he completed 3 years of active service this period and that he had 6 years, 2 months, and 16 days of total active service.

7.  Item 24 (Decorations, Medal, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Forms 214 for the period ending 16 February 1969 and 28 March 1972 does not show award of the Purple Heart.

8.  The applicant’s name is not listed on the Vietnam War Casualty List.

9.  There are no orders in the applicant's military personnel service records awarding him the Purple Heart.

10.  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 U.S. Army Human Resources Command (USAHRC), failed to reveal any orders awarding the applicant the Purple Heart.


11.  The applicant's military medical records are not available for the Board to review.

12.  As evidence to support his application, the applicant provided VA rating decisions that show the VA granted him service-connection for malaria, hearing loss in the left ear, residuals from shell fragment wounds of the left anterior chest and upper right tibia area, and post traumatic stress disorder.  The VA medical documents show that the applicant "suffered scrap metal injury to [right] lower leg" and that he had anesthesia of the right calf secondary "to gunshot injury" on 27 June 1968.  The VA medical documents show, in effect, that in May 1969 during the applicant's second tour in the Republic of Vietnam he sustained shrapnel wounds from a mortar explosion to his head, back, and right leg.  In addition, a VA Rating Decision, dated 23 May 1997, shows that the applicant was not awarded a Purple Heart so it is not possible to determine if the applicant's wounds were inflicted by the enemy or friendly fire [accidental injury occurring in the performance of one's military duties.]

13.  Army Regulation 672-5-1 (Military Awards), then in effect, provides, in pertinent part, that the Purple Heart is awarded to any member of an Armed Force or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. armed services has been wounded, killed, or who has died as a result of 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 a medical officer, and the medical treatment must have been made a matter of official record.

14.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9 of the version in effect at the time, provided, in pertinent part, that a brief description of wounds or injuries (including injury from gas) requiring medical treatment that was received through hostile or enemy action, including those requiring hospitalization would be entered in item 40 (wounds) of the 
DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in item 40.

15.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be awarded the Purple Heart for injuries that occurred during his foreign service tours in the Republic of Vietnam.

2.  Item 40 of the applicant’s DA Form 20 does not show an entry for wounds requiring medical treatment and incurred through hostile or enemy action.  In the absence of military medical records showing that the applicant was wounded and treated for wounds resulting from hostile action and in the absence of permanent orders awarding the Purple Heart, there is insufficient evidence upon which to base award of the Purple Heart.

3.  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, specifically documented medical evidence from military medical personnel of the Armed Forces who provided medical treatment to the applicant for his combat-related injuries that would satisfy award of the Purple Heart.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090015678



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ABCMR Record of Proceedings (cont)                                         AR20090015678



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