IN THE CASE OF:	  

		BOARD DATE:	  4 March 2010

		DOCKET NUMBER:  AR20090016625 


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 an injury he incurred while serving in the Republic of Vietnam.

2.  The applicant states he was injured when his armored personnel carrier struck an anti-tank land mine.  He states he broke his rib and his superiors intended to award him the Purple Heart, but he declined the award, as he did not believe his wound was that bad compared to his fellow Soldiers.  He now understands there are benefits associated with award of the Purple Heart and as a combat Veteran.  He believes he merits the benefits and associated priority within the Department of Veterans Affairs (VA). 

3.  The applicant provides a copy of a DA Form 8-274 (Medical Condition-Physical Profile Record), dated 6 November 1968, and a letter from his local VA Claims Officer, dated 3 September 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 in the Army of the United States on 26 March 1968.  He successfully completed basic and advanced individual training.  He was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).

3.  The applicant served in the Republic of Vietnam from 29 August 1968 to 28 August 1969 with Company C, 4th Battalion (Mechanized), 23rd Infantry, 25th Infantry Division. 

4.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not contain an entry to show the applicant was injured.  

5.  On 12 April 1970, the applicant was released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his mandatory service obligation.  Upon separation, he was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he completed 2 years of active service characterized as honorable.  

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

7.  The applicant’s name is not listed on the Vietnam Casualty Roster as being injured during combat operations.

8.  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, failed to reveal any orders awarding the applicant the Purple Heart.  However, General Orders Number 10390 issued by Headquarters, 25th Infantry Division, on 13 August 1969 awarding the applicant the Bronze Star Medal was retrieved from the aforementioned database.  

9.  As evidence to support his application, the applicant provided a copy of his physical profile, dated 6 November 1968, that shows his profile as "T-3" or temporary-3 and that the medical condition which limited his physical profile was a fracture of the right side rib bone.  This form shows he was medically qualified to return to duty with limitations and that he could not participate in strenuous physical activity for 30 days.  A review of this form does not show how, when or where the applicant fractured his right rib bone to include if the injury was incurred during combat operations with hostile enemy forces.  This form was authenticated by a captain in the Medical Corps from Company D, 25th Medical Battalion. 

10.  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.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  Based on the evidence of record, the applicant fractured his right rib when he was assigned to Company C, 4th Infantry Battalion, 23rd Infantry (Mechanized) in the Republic of Vietnam and he did receive medical treatment for this injury.  However, there is no evidence that the injury was a result of hostile action.

2.  The applicant's name is not listed on the Vietnam Casualty Roster.  Therefore, in the absence of military and medical records showing the applicant's injury resulted from hostile or enemy action, 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 that sufficiently show that his injury was the result of enemy action



4.  Evidence was found to show the applicant was awarded the Bronze Star Medal for his service in the Republic of Vietnam from August 1968 to August 1969.  Upon separate application to the ABCMR, this award could be added to his previously-issued DD Form 214.

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 and heroic actions 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)                                         AR20090016625



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ABCMR Record of Proceedings (cont)                                         AR20090016625



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