IN THE CASE OF:	  

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090019356 


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 was injured in the Republic of Vietnam (RVN) from a grenade explosion in December 1970 or January 1971 and was medically evacuated to the 24th Evacuation Hospital in Long Binh.

3.  The applicant indicates in his application that he submitted supporting documentation; however, no documents were included with the application received for Board processing.

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 record shows the applicant enlisted in the Regular Army and entered active duty on 26 February 1970, and was trained in and awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 28 July 1970 to 27 July 1971.  Item 38 (Record of Assignments) shows during his RVN tour, he was assigned to Company B, 1st Battalion, 5th Infantry Regiment.  Item 40 (Wounds) contains a lined-out entry indicating he received a fragment wound to his chin and a fractured ear drum on 4 November 1970.  The PH is not included in the list of earned awards contained in item 41 (Awards and Decorations).

4.  The applicant's record contains no documents or orders indicating the applicant was awarded the PH by proper authority while serving on active duty.

5.  The record does include a Standard Form 93 (Report of Medical History) prepared on the applicant during his separation examination.  It shows his ears were damaged from a hand grenade explosion in the RVN resulting in hearing loss to both of his ears.  The circumstances surrounding the grenade explosion are not listed on the document.

6.  On 13 December 1971, the applicant was honorably released from active duty in the rank of specialist four/E-4 after completing 1 year, 9 months, and 18 days of creditable active duty service.  The DD Form 214 he was issued shows he earned the following awards:

* National Defense Service Medal
* Marksman Marksmanship Qualification Badge with Rifle (M-16) and Machinegun (M-60) Bars
* Bronze Star Medal
* Vietnam Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Combat Infantryman Badge
* RVN Campaign Medal with Device (1960)
* RVN Gallantry Cross with Palm Unit Citation

7.  During the processing of this case, a member of the Board's staff reviewed the Department of the Army Vietnam casualty roster.  The applicant's name was not included on the roster.

8.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards policy.  Paragraph 2-8 contains guidance on the PH.  It states the PH is awarded to members wounded in action.  It also states that in order to award the PH there must be evidence of the wound for which the award is being made was received as a result of enemy action, the wound required treatment by military medical personnel, and a record of the medical treatment was made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be awarded the PH based on wounds received as a result of a grenade explosion in the RVN has been carefully considered.  However, the evidence of record fails to support this claim.

2.  By regulation, in order to support award of the PH there must be evidence that 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 that a record of the medical treatment was made a matter of official record.

3.  The evidence of record fails to show the grenade explosion that damaged the applicant's ears was received as a result of enemy action.  The lined-out entry in item 40 of his DA Form 20 and the absence of any documents or orders indicating he was ever awarded the PH by proper authority while serving on active duty is an indication that the explosion was accidental and not the result of enemy action.

4.  The presumption the grenade explosion was accidental is further supported by the absence of the PH in the awards listed in item 41 of the applicant's DA Form 20.  In addition, his name is not listed on the Vietnam casualty roster, the official DA list of RVN battle casualties.  Therefore, absent any evidence of record confirming the grenade explosion that damaged his ears was received as a result of enemy action, the regulatory burden of proof has not been satisfied in this case.  As a result, it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to award the applicant the PH at this late date.

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.

6.  The applicant and all others concerned should know this action related to award of the PH in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20090019356



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ABCMR Record of Proceedings (cont)                                         AR20090019356



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