BOARD DATE:	  10 June 2010

		DOCKET NUMBER:  AR20090017072 


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 (PH).

2.  The applicant states he should be awarded the PH based on an injury he sustained in the Republic of Vietnam (RVN).

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a Department of Veterans Affairs (VA) Form 21-0781 (Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder), and medical records 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's military service records were not made available to the Board. 
This case is being considered using reconstructed records consisting of the applicant's DD Form 214 and the medical records he provides.

3.  The applicant's DD Form 214 shows he was inducted into the Army of the United States on 9 April 1969.  It also shows he held and served in military occupational specialty (MOS) 76P (Accounting Specialist and Stock Control) and that he held the rank of specialist four/E-4 on the date of his release from active duty.

4.  The DD Form 214 further shows he served in the RVN for 3 months and 4 days and that he earned the following awards during his active duty tenure:

* National Defense Service Medal
* Combat Infantryman Badge
* Army Good Conduct Medal

5.  On 8 April 1971, the applicant was honorably released from active duty after completing 2 years of active military service.

6.  The applicant provides a VA Form 21-0781 in which he indicates he was injured when he was thrown from a truck on a landing zone after it hit a mine and the load fell on him.

7.  The applicant also provides medical treatment records that include a DA Form 8-275-3 (Clinical Cover Sheet), dated 2 January 1970, which documents his activity at the time of his injury.  It indicates he was on a detail to move steel culverts via a 2 1/2-ton truck to a new location.  The truck driver was driving around a hill when the weight of the load shifted causing the truck to tip over.  The applicant was thrown from the vehicle and was injured.

8.  During the review of this case, a member of the Board staff reviewed the DA Vietnam casualty roster, the official DA listing of RVN battle casualties.  No entry pertaining to the applicant was found on this roster.

9.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-8 contains guidance on award of the PH.  It states in order to support award of the PH, there must be evidence that the wound for which the award is being made was received as a direct result of enemy action, that it required treatment by military medical personnel, and a record of the treatment must have been made a matter of official record.

10.  Paragraph 2-8h of Army Regulation 600-8-22 provides examples of injuries or wounds which clearly do not justify award of the PH.  Included in these examples are accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention he should be awarded the PH based on injuries he sustained in the RVN has been carefully considered.  However, by regulation, wounds/injuries suffered as a result of vehicular accidents not related to enemy action do not justify award of the PH.

2.  In this case, contrary to the entry on the VA Form 21-0781, the medical treatment records confirm his injuries were sustained as a result of a vehicle accident not resulting from or caused by enemy action.  In addition, his name is not included on the Vietnam casualty roster, which could be expected if his injuries were the result of enemy action, given his treatment was clearly documented.

3.  Absent any evidence confirming his injuries were received as a result of or caused by enemy action, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  As a result, it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to award the applicant the PH at this late date.

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.

5.  The applicant and all others concerned should know this action related to award of the PH in no way diminishes the sacrifices made by him 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)                                         AR20090017072



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ABCMR Record of Proceedings (cont)                                         AR20090017072



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