IN THE CASE OF:	  

		BOARD DATE:	    3 June 2010

		DOCKET NUMBER:  AR20090020444 


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 correction of his records to show award of the Purple Heart.

2.  The applicant states he should have been awarded the Purple Heart for injuries from shrapnel in his left knee and back from a mortar/rocket-propelled grenade (RPG) attack.  He describes the events leading up to a firefight with the enemy and states that after he parked his vehicle outside an airbase fence, he climbed on a tank and something exploded behind him.  He states he received pieces of scrap metal from the explosion in his left leg and back.  He further states that while he assisted with dropping dead Soldiers off at the hospital, the staff attempted to extract the metal out of his leg and back but it was embedded too deep.  He states he told his first sergeant that they had been hit and he told them not to worry about it.  He states these metal pieces are still there today.

3.  The applicant provides an X-ray report from the Mulberry Diagnostic Imaging Center, Montgomery, AL.

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 military records show that after serving in the Army National Guard he enlisted in the Regular Army on 27 February 1961.  He was awarded the military occupational specialties of UH-1 helicopter repairer and physical activities specialist.  The highest rank/grade he held was sergeant first class (SFC)/E-7.

3.  The applicant was honorably retired on 31 October 1981 and transferred to the U.S. Army Reserve (USAR) Control Group (Retired) by reason of required service for retirement.  His DD Form 214 shows he completed a total of 21 years, 2 months, and 4 days of creditable active service.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he served in the Republic of Vietnam (RVN) during the periods 25 August 1967 to 24 August 1968 and 12 February to 29 December 1970.

5.  His DD Form 214 for the period 23 July 1965 through 22 April 1971 also shows he served in the RVN during that time.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of this form does not show award of the Purple Heart.

6.  The applicant's name does not appear on the Vietnam Casualty Roster.

7.  The applicant provided an x-ray report, dated 17 November 2003, which indicates he has some "old shrapnel."

8.  There is no evidence in the available records and the applicant did not provide any evidence which shows he was ever wounded or treated for wounds sustained as the result of hostile action.

9.  The applicant's records do not contain any evidence that indicates he was ever recommended for or awarded the Purple Heart by proper authority while serving on active duty.


10.  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 contends he was injured by an explosion while he was on a tank following a firefight with the enemy and provides an x-ray report which indicates he has "old shrapnel."  However, there is no evidence in his available military personnel records nor any corroborating evidence which shows that he was wounded or injured (received this shrapnel) as a result of hostile action, that the wound required treatment by medical personnel, or that the medical treatment was made a matter of official record.

2.  The applicant's name is not listed on the Vietnam Casualty Roster.

3.  In the absence of evidence that the applicant was wounded or injured as a result of hostile action and treated for such wounds, there is insufficient evidence upon which to base award of the Purple Heart.  As a result, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  Therefore, there is insufficient basis for granting the applicant's requested relief.

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)                                         AR20090020444



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ABCMR Record of Proceedings (cont)                                         AR20090020444



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