IN THE CASE OF:
BOARD DATE: 15 April 2010
DOCKET NUMBER: AR20090018110
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 he was wounded in combat and is currently receiving service-connected disability compensation for the residuals of his wounds.
3. The applicant provides a copy of the Department of Veterans Affairs (DVA) rating decision, dated 31 October 2008, in support of his application.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests that the applicant be awarded the Purple Heart.
2. Counsel states the Board should take appropriate action in his case.
3. Counsel did not provide additional documentary evidence in support of his request.
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's records show he enlisted in the Regular Army on 22 September 1969 and held military occupational specialty 11B (Light Weapons Infantryman).
3. His records further show he served in the Republic of Vietnam from on or about 13 March 1970 to on or about 12 February 1971. He was assigned to Company B, 1st Battalion, 501st Infantry.
4. He was honorably released from active duty on 23 September 1971 and he was transferred to the U.S. Army Reserve Control Group (Annual Training) for completion of his Reserve obligation.
5. Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the National Defense Service Medal, Vietnam Service Medal with 2 bronze service stars, Republic of Vietnam Campaign Medal with "1960" Device, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), Marksman Marksmanship Qualification Badge with Rifle and Pistol Bars, Air Medal,
2 overseas service bars, and Combat Infantryman Badge.
6. Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) shows a blank entry and item 41 (Awards and Decorations) of this form does not show award of the Purple Heart.
7. The applicant's records do not contain official orders awarding him the Purple Heart. Additionally, his name is not shown on the Vietnam Casualty Roster.
8. During the processing of this case, a member of the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System maintained by the Military Awards Branch of the U.S Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973. This review failed to reveal any Purple Heart orders on file for him.
9. His medical records are not available for review with this case.
10. He submitted a copy of his DVA rating decision, dated 31 October 2008, wherein the VA awarded him service-connected disability compensation for post traumatic stress disorder, tinnitus, and a residual scar to his left anterior tibia from a shrapnel fragment wound (claimed as shrapnel wound to his left leg).
11. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against and enemy or 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 medical personnel, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that he is entitled to award of the Purple Heart.
2. The applicants service in the Republic of Vietnam is not in question. However, there is no evidence in the available record and he did not provide substantiating evidence that shows his self-claimed shrapnel wound resulted from enemy/hostile action or that he was treated for this wound or that his treatment was made a matter of official record.
3. In the absence of documentation that shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
_____X___ ____X___ ___X____ DENY APPLICATION
_______ ________ ________ 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 made by him 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) AR20090018110
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ABCMR Record of Proceedings (cont) AR20090018110
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