IN THE CASE OF:	  

		BOARD DATE:	  	  22 June 2010

		DOCKET NUMBER:  AR20090021081 


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.

2.  The applicant states:

* He was wounded on two separate occasions during combat in Vietnam in 1968
* He never received the Purple Heart
* At  the time he considered his wounds insignificant compared to wounds received by other members of his platoon and he did not pursue the award   

3.  The applicant provides:

* Two eyewitness statements from fellow Soldiers
* Statement from his spouse

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 was inducted into the Army of the United States on 
1 August 1967.  He served as an infantryman in Vietnam from 25 January 1968 to 20 January 1969.  On 31 July 1969, he was released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining service obligation.

3.  The applicant's DD Form 214 (Report of Transfer or Discharge) does not show the Purple Heart as an authorized award.  

4.  There are no orders for the Purple Heart in the applicant’s service personnel records.  

5.  The applicant's DA Form 20 (Enlisted Qualification Record) does not show entitlement to the Purple Heart and item 40 (Wounds) of his DA Form 20 is blank.  The applicant's name does not appear on the Vietnam Casualty Roster.

6.  On 9 May 1969, the applicant underwent a separation physical examination which makes no mention of any injuries or wounds sustained as a result of hostile action in Vietnam.  Items 18 (Head, Face, Neck and Scalp), 35 (Upper Extremities), and 37 (Lower Extremities) of his Standard Form 88 (Report of Medical Examination), dated 9 May 1969, shows he was rated normal.

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 orders for the Purple Heart. 

8.  In support of his claim, the applicant provided two eyewitness statements from fellow Soldiers at the time in question.  One Soldier (acting platoon leader) attests on 24 August 1968, while on a search and destroy mission, they were ambushed and during the first minutes of the fire fight the applicant was injured by a grenade (arms, hands, and legs).  A second grenade caused injuries to his neck.  He states the medic cleaned and bandaged the applicant's wounds and he put in orders for the Purple Heart.  

9.  The second Soldier attests the applicant was wounded during two separate events and never received the Purple Heart.  He contends on 27 March 1968 while they were carrying a wounded man on a litter the applicant got shot in the right arm and the medic cleaned it up.  He also states in July 1968 the applicant was wounded by a grenade and sustained shrapnel injuries to his chest, legs, and arms.        

10.  The applicant also provided a statement from his spouse.  She attests the applicant told her of episodes that resulted in him being wounded, she has seen the scars of both the bullet wound and hand grenade, and she has seen what appear to be small pieces of metal coming from blisters formed on his scars.  

11.  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 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 wounded on two separate occasions during combat in Vietnam in 1968.  

2.  There is no evidence of record which shows the applicant was wounded or injured as a result of hostile action in Vietnam.  His separation physical examination, dated 9 May 1969, makes no mention of any injuries or wounds sustained as a result of hostile action in Vietnam.  

3.  There are no orders for the Purple Heart in the available records.  In the absence of orders or other evidence of record showing that the applicant was injured or treated for wounds as a result of hostile action in Vietnam, the eyewitness statements provided by the applicant, which give conflicting descriptions of the alleged wounding, are not sufficient as a basis for award of the Purple Heart.  Regrettably, there is insufficient evidence on which to base award of the Purple Heart in this case.

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)                                         AR20090021081



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ABCMR Record of Proceedings (cont)                                         AR20090021081



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