IN THE CASE OF:
BOARD DATE: 25 February 2010
DOCKET NUMBER: AR20090016595
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 correction of his records to show award of the Purple Heart.
2. The applicant states he received a Purple Heart in the 71st Evacuation Hospital, but it was never recorded on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
3. The applicant provides a copy of a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 7 December 1967; a DA Form 199 (Physical Evaluation Board Proceedings), dated 16 February 1968; and his DD Form 214 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 applicants 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 applicants 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 Army of the United States on 7 October 1966. He completed infantry training and his highest grade attained was specialist four.
3. He served in Vietnam from 20 September 1967 through 30 December 1967. There is no evidence of record which shows he was wounded in action during his tour in Vietnam.
4. The applicant's DA Form 2173, dated 7 December 1967, shows he was treated at the 71st Evacuation Hospital for a laceration of his scalp, fractured wall of frontal sinus, and loss of left eye. In the remarks section of this form, it showed the entry Accidental injury from helicopter blade. The details of the incident indicated that Although personnel present hollered for him to duck his head, he did not and was hit by the rotar blade of the helicopter.
5. His DA Form 20 (Enlisted Qualification Record) does not list the Purple Heart in item 41 (Awards and Decorations).
6. There are no orders in the applicant's personnel records which show he was awarded the Purple Heart. His DA Form 20 does not list any wounds as a result of hostile action in item 40 (Wounds). His name is not included on the Vietnam Casualty Roster.
7. On 16 February 1968, the applicant was evaluated by a Physical Evaluation Board (PEB). The PEB determined that the applicant was unfit because of physical disability. His disabilities were listed as absence of left eye and disfiguring scars on his head and face.
8. The applicant was medically retired on 3 May 1968. His DD Form 214 does not show entitlement to award of the Purple Heart.
9. Army Regulation 600-8-22 provides, in pertinent part, that the PH 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, and the medical treatment must have been made a matter of official record. Paragraph 2-8b(2) states that for the purpose of considering an award of the Purple Heart, a wound is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy. The regulation states that the key issue that commanders must take into consideration is the degree to which the enemy caused the injury. The fact that
the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for award.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that he received a Purple Heart in the 71st Evacuation Hospital, but it was never recorded on his DD Form 214. However, there is no evidence to substantiate his claim.
2. The Statement of Medical Examination and Duty Status, dated 7 December 1967, which shows he was treated for laceration of his scalp, fractured wall of frontal sinus, and loss of left eye which he sustained as a result of an accidental injury from a helicopter blade.
3. The applicant's name is not listed on the Vietnam Casualty Roster.
4. By regulation, in order to award the Purple Heart it is necessary to establish that a Soldier was wounded in action, that the wound required treatment by medical personnel, and the treatment must have been made a matter of official record.
5. In the absence of any other corroborating evidence of record which shows the applicant was wounded or injured as a result of hostile action, regrettably, there is insufficient evidence upon which to base correction of his records to show award of the Purple Heart in this case.
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) AR20090016595
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ABCMR Record of Proceedings (cont) AR20090016595
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