IN THE CASE OF:	  

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090017608 


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.

2.  The applicant states that the Purple Heart should be shown on his DD Form 214 because he was wounded defending his country.  He also states that this is the third time he has requested the award.

3.  In support of his application, the applicant provides copies of a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim).

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 records show he was inducted into the Army of the United States in pay grade E-1 on 9 December 1965.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He served in Vietnam from 22 September 1966 to 8 August 1967.

3.  He was honorably released from active duty in pay grade E-5 on 8 December 1967 at the expiration of his term of service and was transferred to the U.S. Army Reserve Control Group (Annual Training).

4.  Entries in item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 show the National Defense Service Medal, the Vietnam Service Medal with one bronze service star, the Republic of Vietnam Campaign Medal, and the Combat Infantryman Badge.  The Purple Heart is not shown.

5.  There are no orders in the applicant's military personnel records authorizing award of the Purple Heart.  There is no entry in item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) showing he was wounded as a result of hostile enemy action.  Item 41 (Awards and Decorations) of his DA Form 20 does not list the Purple Heart.

6.  The Vietnam casualty list was reviewed to determine if the applicant had been wounded in action while he served in Vietnam.  The applicant's name is not shown on this list.

7.  A review of the Awards and Decorations Computer Assisted Retrieval System, which includes the records of the applicant's unit for the time frame the applicant served in Vietnam, was conducted.  This review failed to show any orders were published authorizing award of the Purple Heart to the applicant.

8.  The applicant submitted a copy of a VA Form 21-4138, dated 9 December 2005, wherein he stated that he applied for award of the Purple Heart through the Military Order of the Purple Heart and never received any information or a reply.

9.  In a letter, dated 17 January 2006, the ABCMR advised the applicant that his military records were on loan to another agency and his case was being closed without further action based on the unavailability of supporting documents.

10.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart 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 by military personnel, and the medical treatment must have been made a matter of official record.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of entitlement to the Purple Heart and the supporting evidence provided were carefully considered.  However, by regulation, in order to support award of the Purple Heart, there must be evidence confirming that the wound for which the award is being made was received was caused by or was a direct result of enemy action, that the wound was treated by medical personnel, and a record of this treatment must have been made a matter of official record.

2.  The applicant submitted evidence showing he had previously requested award of the Purple Heart.  However, he provided no evidence to show that he was wounded as a result of hostile action while serving in Vietnam and is entitled to award of the Purple Heart.

3.  The evidence of record contains no orders or other documents confirming that the applicant's injury was caused by his participation in direct or indirect combat operations while serving in Vietnam.  The applicant's name does not appear on the Vietnam casualty list.  There were no entries made in his service personnel records to show he was wounded as a result of hostile action.

4.  Therefore, absent corroborating evidence confirming the applicant's contentions (chain of command supporting letters, etc.), the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.

5.  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.  Based on the evidence in this case, the applicant is not entitled to award of the Purple Heart and its addition to his DD Form 214.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090017608



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ABCMR Record of Proceedings (cont)                                         AR20090017608



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