IN THE CASE OF:	  

		BOARD DATE:	  3 June 2010

		DOCKET NUMBER:  AR20090020152 


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 and its addition to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states he should have been awarded the Purple Heart for an injury to his left hand.  He also states that there are military records (medical) that show he was in the hospital in Vietnam and those records should show he was wounded.  He was in Vietnam from 1967 to 1968 and was hurt sometime in May or June of 1968.  

3.  The applicant provides no additional documentation in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers request and statement to the applicant and provided no additional documentation.

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.  His military records show he enlisted in the Regular Army on 31 January 1966, for 3 years and in pay grade E-1.  He completed training and was awarded military occupational specialties 63B (Wheel Vehicle Mechanic Helper) and 12B (Combat Engineer).  He served in Vietnam from 3 November 1966 to 22 October 1967.  His records show he was treated for hearing loss in the right ear from February 1966 to November 1968.  

3.  He was honorably released from active duty in pay grade E-1 on 23 January 1969, under the early release program to attend school.  He was transferred to the United States Army Reserve Control Group (Reinforcement).  He was credited with 2 years and 11 months of net active service.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal with one bronze service star, and the Republic of Vietnam Campaign Medal.  

5.  There is no entry in Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) showing he was wounded in action as a result of hostile enemy action.  Item 41 (Awards and Decorations) of his DA Form 20 contains no entry showing he was awarded the Purple Heart.

6.  There are no orders in his military personnel records awarding him the Purple Heart.

7.  The Vietnam casualty list was reviewed and his name is not listed as being wounded in action in Vietnam.  A search of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS) was made for orders awarding him the Purple Heart.  No orders for this award were found in ADCARS.

8.  Army Regulation 600-8-22 (Military Awards) provides 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's claim of entitlement to the Purple Heart and the supporting evidence provided were carefully considered.  However, by regulation, in order to support award of the Purple Heart, there must be evidence confirming the wound for which the award is being made was received as a direct result of or was caused by enemy action, that the wound was treated by medical personnel, and a record of this treatment must have been made a matter of official record.

2.  He provided no evidence to show that he was injured or wounded as a result of hostile action while serving in Vietnam.  The evidence of record contains no orders or other documents confirming that he was injured or wounded as a result of his participation in direct or indirect combat operations while serving in Vietnam.  His name does not appear on the Vietnam casualty list and there were no entries made in his service personnel records to show he was injured or wounded as a result of hostile action.

3.  Therefore, absent corroborating evidence confirming his contentions (supporting letters from his chain of command, etc.), the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.

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.  Based on the evidence in this case, the applicant is not entitled to correction of his DD Form 214 to show the Purple Heart.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090020152



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ABCMR Record of Proceedings (cont)                                         AR20090020152



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