IN THE CASE OF:	

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090017057 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Purple Heart with 1st Oak Leaf Cluster [indicating award of two Purple Hearts].

2.  The applicant states that he was wounded in action on two separate occasions during his tour of duty in the Republic of Vietnam:  30 May 1969 and 20 November 1969.  He states an administrative error resulted in the omission of two Purple Hearts from his DD Form 214 at the time of his discharge.

3.  The applicant provides the following as documentary evidence in support of this application:

* Headquarters, 3d Field Hospital, General Orders Number 319, dated 21 November 1969
* notarized Letter of Witness, dated 18 August 2009
* DA Form 20 (Enlisted Qualification Record)
* DA Form 2658 (Health Record Abstract of Service)
* extract from a book entitled The Boys of Company A
* DD Form 214

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 2 October 1968.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11H (Infantry Direct Fire Crewman).  On 29 April 1970, he began on-the-job training and was awarded a secondary MOS of 76Y (Armorer/Unit Supply Specialist) on 1 September 1970.  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.  The applicant was released from active duty on 1 October 1970 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.

3.  Item 31 (Foreign Service) of the applicant's DA Form 20 and Item 30 (Remarks) of his DD Form 214 show the applicant served a tour of duty in the Republic of Vietnam during the period 13 March 1969 through 9 March 1970.

4.  Item 38 (Record of Assignments) of the applicant's DA Form 20 shows that during his tour of duty in the Republic of Vietnam he served with Company A,
1st Battalion, 7th Cavalry Regiment, 1st Cavalry Division (Airmobile), from 25 March 1969 through 14 December 1969 and with Headquarters and Headquarters Company, 3rd Brigade, 1st Air Cavalry Division (Airmobile) from
15 December 1969 through 9 March 1970.  He served with both units in MOS 11H.

5.  Item 40 (Wounds) of the applicant's DA Form 20 shows he sustained fragmentation wounds to his left hand and left ankle on 20 November 1969.  This form does not show the applicant sustained wounds on 30 May 1969 or any other additional date.

6.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 shows Headquarters, 1st Cavalry Division (Airmobile), General Orders Number 14805, dated 22 November 1969, awarded him the Purple Heart.  This form does not show any additional entries for award of the Purple Heart.


7.  The applicant's record contains Headquarters, 1st Cavalry Division (Airmobile), General Orders Number 14805, dated 22 November 1969, which awarded him the Purple Heart for wounds received in connection with military operations against a hostile force on 20 November 1969.

8.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded one Purple Heart.

9.  The Vietnam Casualty Roster shows the applicant sustained a wound as the result of hostile fire on 20 November 1969.  There is no evidence in the available records which shows the applicant was wounded a second time during a different incident.

10.  The applicant provides Headquarters, 3d Field Hospital, General Orders Number 319, dated 21 November 1969, which awarded him the Purple Heart with Oak Leaf Cluster for wounds received in connection with military operations against a hostile force on 20 November 1969.

11.  The applicant provides a Health Record - Abstract of Service which shows his health record was maintained by the 1st Battalion, 7th Cavalry Regiment Aid Station for an unspecified period beginning on 27 March 1969.  It was then maintained by the 3rd Brigade Aid Station for an unspecified period beginning on 8 December 1969.

12.  The applicant provides a Letter of Witness rendered by D--- H------ on 18 August 2009, wherein he attests the applicant sustained a shrapnel wound to his left hand on 30 May 1969 while serving in the Republic of Vietnam.  The witness states the medics cleaned and bandaged the wound that day; the applicant was not medically evacuated from the field, but remained in the platoon while the wound healed over the next couple of weeks.  The witness further states he remembers the incident quite well due to the fact that another Soldier was killed in the same blast and the witness had been standing near the applicant five minutes prior to the explosion in which they were both wounded.

13.  The applicant provides an extract from a book entitled The Boys of Company A, wherein, D--- H------ provides his accounts of when the applicant sustained wounds on both 30 May 1969 and 20 November 1969.

14.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a direct 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 military personnel, and the medical treatment must have been made a matter of official record.  Not more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force explosion, or agent.

15.  Army Regulation 600-8-22 states, in pertinent part, that an oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Purple Heart.

16.  Paragraph 1-18 of Army Regulation 600-8-22 states that only one decoration will be awarded to an individual for the same act, achievement, or period of meritorious service.

17.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided, in pertinent part, for award of the Purple Heart.  The regulation stated that authority to award the Purple Heart was delegated to hospital commanders.  Further, it directed that all personnel treated and released within 24 hours would be awarded the Purple Heart by the organization to which the individual is assigned.  Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam would be awarded the Purple Heart directly by the hospital commander rendering treatment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded an additional Purple Heart was carefully considered.

2.  Evidence shows the applicant sustained shrapnel injuries to his left hand and left ankle on 20 November 1969 while serving in the Republic of Vietnam and was subsequently awarded the Purple Heart by both his unit and the hospital where he received treatment.

3.  Although the applicant provides a third-party testimony from a former Soldier attesting he was wounded on 30 May 1969, it is not corroborated by any official evidence.

4.  The Vietnam Casualty Roster shows the applicant sustained a wound as the result of hostile fire on 20 November 1969.  There is no evidence in the available records and the applicant has failed to provide any evidence showing he was wounded a second time during a different incident or that his wound was treated by medical personnel and made a matter of official record.

5.  Evidence shows two different orders issuing authorities issued the applicant orders awarding him the Purple Heart for the exact same incident.

6.  In the absence of evidence of record that the applicant was wounded or injured as a result of hostile action during another incident, and that his wound was treated by medical personnel and made a matter of official record, there is insufficient evidence upon which to base award of an additional Purple Heart in this case.  As a result, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  

7.  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.  

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)                                         AR20090017057



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090017057



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1