IN THE CASE OF:	  

		BOARD DATE:	  8 June 2010

		DOCKET NUMBER:  AR20090019331 


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 received shrapnel wounds while serving in the Republic of Vietnam (RVN).  He states while in the field, in order to prevent an attack, they were shooting into the surrounding area.  He claims the .50 caliber machine gun casings ruptured when ejecting and severed the femoral artery in his right leg.  

3.  The applicant further states some individuals in the hospital accused him of shooting himself.  He claims this is ludicrous given the weapon is as long as he is tall and he was surrounded by other men who would have seen him try to do so.  He indicates he was made to feel it would not be worth his time to argue the point.  He indicates he was made to feel he had done something wrong and should have been glad he was not being prosecuted for negligence.  He states the value of the honor was not made known to him until he went to the Medical Center in Atlanta, where he was told he should file for this award.  

4.  The applicant states he has always been made to feel bad about being in the RVN and he was unaware of the support available to veterans through the Department of Veterans Affairs (VA).  

5.  The applicant refers to a VA patient card and file number at the Decatur, Georgia, VA Medical Center but provides no documentary evidence 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 record shows he enlisted in the Regular Army on 24 February 1967 and was trained in and awarded military occupational specialty (MOS) 63C (General Vehicle Repairer).  

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 23 August 1970 through 6 January 1971.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to Headquarters and Headquarters Troop, 3rd Squadron, 5th Cavalry Regiment, performing duties in MOS 63C as a general vehicle repairman.  It also shows he entered a patient status on 22 December 1970, and was medically evacuated to the Medical Holding Company, Valley Forge General Hospital (VFGH), Pennsylvania, on 
8 January 1971.  

4.  Item 40 (Wounds) of the applicant's DA Form 20 is blank and the PH is not included in the list of awards contained in item 41 (Awards and Decorations). 

5.  The applicant's record contains documents confirming his hospitalization and his release from VFGH after being found fit for duty on 6 March 1971.  The record is void of medical treatment records containing the facts and circumstances related to the condition for which he was hospitalized and/or the treatment he received.  

6.  The applicant's record is void of orders or documents indicating he was recommended for or awarded the PH by proper authority while serving in the RVN.  It is also void of documents indicating he was wounded as a result of enemy action.  


7.  The applicant's record contains an Standard Form (SF) 88 (Report of Medical Examination), dated 15 November 1971, which documents the applicant's separation physical examination.  This document contains a note to item 30 (vascular system) of the clinical evaluation portion of the form indicating the applicant suffered a laceration of the right superficial femoral artery.  No facts or circumstances related to how this laceration was incurred is documented on the SF 88.  

8.  On 15 December 1971, the applicant was honorably released from active duty, in the rank of specialist four/E-4, after completing 2 years, 9 months, and
22 days of active military service.

9.  During the processing of this case, a member of the Board's staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant's name is not included in this list of RVN casualties.  

10.  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 the wound for which the award is being made was received as a result of enemy action; that it required treatment by military medical personnel; and a record of this treatment must have been made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention he should be awarded the PH based on wounds sustained while serving in the RVN has been carefully considered.  However, the evidence is not sufficient to support this claim.  

2.  By regulation, in order to support award of the PH, there must be evidence the wound for which the award is being made was received as a result of enemy action.  In this case, while it is clear the applicant was hospitalized and medically evacuated from the RVN, there is no evidence or record confirming this was the result of him being wounded as a result of enemy action.  

3.  To the contrary, it must be presumed, given the applicant was hospitalized and hospital commanders had the authority to award the PH when appropriate, it was determined by proper authority that the medical condition resulting in his hospitalization was not caused by enemy action.  This presumption is further supported by the fact item 40 of his DA Form 20 is blank, indicating he was never wounded in action.  

4.  Further, the PH is not included in the awards listed in item 41 of the applicant's DA Form 20.  There are no orders or other documents on file indicating he was ever recommended for or awarded the PH by proper authority while serving on active duty and his name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  As a result, absent evidence of record or independent evidence provided by the applicant corroborating he was wounded in action, the regulatory burden of proof necessary to support award of the PH 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.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090019331



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ABCMR Record of Proceedings (cont)                                         AR20090019331


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