IN THE CASE OF:
BOARD DATE: 19 May 2010
DOCKET NUMBER: AR20090019168
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 he received a field wound on 8 May 1971 during action with the enemy but for reasons unknown he was not awarded the Purple Heart.
3. The applicant provides:
* health record
* affidavit
* email from fellow Soldier
* three eyewitness statements from fellow Soldiers
* DD Form 214 (Report of Transfer or Discharge)
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 on 31 August 1970. He served as a light weapons infantryman in Vietnam from 7 March 1971 to 19 January 1972. On 9 March 1972, he was released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining service obligation.
3. The applicant's DD Form 214 does not show the Purple Heart as an authorized award.
4. There are no orders for the Purple Heart in the applicants service personnel records.
5. The applicant's DA Form 20 (Enlisted Qualification Record) does not show entitlement to the Purple Heart and item 40 (Wounds) of his DA Form 20 is blank. The applicant's name does not appear on the Vietnam Casualty Roster.
6. In support of his claim for the Purple Heart, the applicant provided a health record, dated 8 May 1971, which shows he was treated for a fragment wound to his left foot. This medical record also states "Pt [patient] had M79 discharge last night & strike foot."
7. The applicant also provided four eyewitness statements from fellow Soldiers at the time in question who attest the applicant was wounded in combat while on a patrol in May 1971.
8. 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.
9. 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. The applicant contends he received a field wound in combat on 8 May 1971. However, the service medical record provided by the applicant does not show the fragment wound to his left foot was the result of hostile action. The medical record states his M79 discharged and struck his foot.
2. There are no orders for the Purple Heart in the available records. In the absence of orders or other evidence of record showing that the applicant was injured or treated for wounds as a result of hostile action in Vietnam, the eyewitness statements provided by the applicant are not sufficient as a basis for award of the Purple Heart. Regrettably, there is insufficient evidence on 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
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) AR20090019168
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ABCMR Record of Proceedings (cont) AR20090019168
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