BOARD DATE: 29 April 2010
DOCKET NUMBER: AR20090018861
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 that he be awarded the Purple Heart for wounds received in Vietnam.
2. The applicant states, in effect, that he was wounded in Vietnam by a bullet in the right side of his face and shrapnel to his right leg and that he should be awarded the Purple Heart. He further states that he was awarded the Purple Heart; however, he refused to accept it. He also states he has filed a claim for Department of Veterans Affairs (DVA) benefits.
3. The applicant provides a third-party statement from an individual who claims that he witnessed the applicant refusing the award of the Purple Heart in the hospital at Da Nang in 1971.
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 was inducted into the Army of the United States in Roanoke, VA on 15 April 1970. He completed his training as a field artillery cannoneer at Fort Sill, OK and was transferred to Vietnam on 11 January 1971. He was assigned to C Battery, 3d Battalion, 82d Artillery Regiment and was advanced to the rank/pay grade of specialist four (SP4)/E-4 on 6 July 1971.
3. He departed Vietnam on 19 December 1971 and was transferred to Fort Lewis, WA where he was honorably released from active duty (REFRAD) on
20 December 1971 as an overseas returnee. He had served 1 year, 8 months, and 3 days of total active service. Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded the Army Commendation Medal with 1st oak leaf cluster, National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Marksman Marksmanship Qualification Badge with Rifle (M-16) Bar, and two Overseas Service Bars.
4. A review of the applicants official records and the Vietnam Casualty Listing failed to reveal any evidence to show that the applicant was wounded as a result of hostile action while in Vietnam or that he was ever reported as a battle casualty. Additionally, a Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant.
5. The supporting third-party statement submitted by the applicant is from an individual who claims he was in the hospital with the applicant and that he witnessed the applicant refusing the award of the Purple Heart. That individuals name is also not listed on the Vietnam Casualty Listing.
6. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, 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 medical personnel, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. While the sincerity of the applicants claim that he was wounded as a result of enemy action and that he refused the award of the Purple Heart while in the hospital is not in doubt, there simply is no evidence in the available records to substantiate his claim.
2. The supporting statement has also been noted; however, that in itself is not sufficient to establish the applicants entitlement to award of the Purple Heart some 39 years after the fact.
3. Therefore, in the absence of sufficient evidence to show that he was wounded as a result of hostile action and that the treatment for his wounds were made a matter of record, there appears to be no basis to grant him award of the Purple Heart at this time.
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 ABCMR does not correct records solely for the purpose of making the applicant eligible for veterans or medical benefits. Every case is individually decided based upon its merits when an applicant requests a correction of records.
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.
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