IN THE CASE OF:
BOARD DATE: 19 May 2010
DOCKET NUMBER: AR20090020177
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.
2. The applicant states that he was wounded in a rocket attack in Vietnam on 16 February 1967, but he was not immediately treated. He goes on to state that he was later treated in a mobile army surgical hospital (MASH) unit at Landing Zone English for infection of the wound and it was noted on his exit medical exam.
3. The applicant provides a copy of an order awarding him the Army Commendation Medal (ARCOM) with "V" Device for heroism on 16 February 1967, a copy of his Standard Form 88 (Report of Medical Examination), and a copy of his DD Form 214 (Armed Forces of the United States 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 in Butte, MT on 26 October 1965 and was transferred to Fort Carson, CO to undergo his training as an infantryman with Company D, 5th Battalion, 7th Cavalry Regiment, 4th Infantry Division.
3. On 2 August 1966 he was transferred to Vietnam with his unit and on 31 May 1967, he was awarded the ARCOM with V Device for heroism.
4. He was promoted to the rank/grade of sergeant (SGT)/E-5 on 14 May 1967 and he departed Vietnam on 2 August 1967 for Oakland Army Base, CA.
5. On 3 August 1967, he was honorably released from active duty (REFRAD) as an overseas returnee and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation. He had served 1 year, 9 months, and 8 days of total active service. Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 reflects that he was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Combat Infantryman Badge, ARCOM with V Device, Air Medal, and the Bronze Star Medal.
6. The applicants medical records are not present in the available records as they were loaned to the Veterans Administration Center in Fort Harrison, MT on 19 October 1967. However, his separation Standard Form (SF) 88 examination completed on 2 August 1967 has an entry in Item 73 (Notes) indicating shrapnel wound right lower leg.
7. 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.
8. A search of the applicants official records also failed to show that he was wounded as a result of hostile action and his name is not contained on the Vietnam Casualty Listing.
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 been treated by medical personnel, and the medical treatment must have been made a matter of official records.
DISCUSSION AND CONCLUSIONS:
1. While the sincerity of the applicants claim that he was wounded in action with the enemy and he was subsequently treated for his wounds is not in doubt the applicant has failed to provide sufficient evidence to substantiate his claim.
2. Although he provided a copy of his separation medical examination indicating he had a shrapnel wound on the right leg, that entry in itself is not sufficient to meet the regulatory requirements because it does not establish the date of his wound, when treatment was provided, and verification that his wound was the direct result of hostile action.
3. Therefore, in the absence of evidence to establish that he was wounded as a result of enemy actions and that treatment was made a matter of record, there appears to be no basis to award him the Purple Heart at this time.
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) AR20090020177
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ABCMR Record of Proceedings (cont) AR20090020177
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