IN THE CASE OF:	  

		BOARD DATE:	    10 June 2010

		DOCKET NUMBER:  AR20090021231 


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 correction to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show a second award of the Distinguished Flying Cross.  

2.  The applicant states he never received the Purple Heart when he was wounded in action in Vietnam in 1967.  While in aerial flight for the 1st Cavalry Division shrapnel hit his face during exchange of heavy fire with the Viet Cong.  The medic said he didn’t need stitches and went on to the other injured.  Apparently the medic never entered his wound into his service files, because he was not awarded the Purple Heart.  He did receive a Distinguished Flying Cross as an impact award.  While in country he was awarded two awards of the Distinguished Flying Cross and only one award is shown on his DD Form 214.  He would like his records amended so he can legally display these medals as he feels he truly earned the right.

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

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 was inducted into the Army of the United States in pay grade E-1 on 23 August 1966.  He completed training and was awarded military occupational specialty 67N (Helicopter Mechanic).  He served in Vietnam from 6 August 1967 to 5 August 1968.

3.  General Orders Number 7557, dated 22 December 1967, show he was awarded the Distinguished Flying Cross for heroism while participating in aerial flight evidenced by voluntary action above and beyond the call of duty in Vietnam on 9 December 1967.  

4.  He was honorably released from active duty in pay grade E-5 (temporary) on 6 August 1968 as an overseas returnee and was transferred to the U.S. Army Reserve Control Group (Annual Training).

5.  Entries in Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 show the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), the Expert Marksmanship Qualification Badge with Rifle Bar 
(M-14), the Distinguished Flying Cross, the Air Medal, the Aircraft Crewman Badge, and the Bronze Star Medal.  

6.  There are no orders in his military personnel records authorizing award of the Purple Heart or a second award of the Distinguished Flying Cross.  There is no entry in Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) showing he was wounded as a result of hostile enemy action.  Item 41 (Awards and Decorations) of his DA Form 20 does not list the Purple Heart or a second award of the Distinguished Flying Cross.

7.  The Vietnam casualty list was reviewed to determine if he had been wounded in action while he served in Vietnam.  His name is not shown on this list.

8.  A review of the Awards and Decorations Computer Assisted Retrieval System, which includes the records of his unit for the time frame he served in Vietnam, was conducted.  This review failed to show any orders were published authorizing award of the Purple Heart or a second award of the Distinguished Flying Cross to him.

9.  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 military personnel, and the medical treatment must have been made a matter of official record.

10.  Army Regulation 600-8-22 also provides the Distinguished Flying Cross is awarded to any person who, while serving in any capacity with the Army of the United States, distinguished himself or herself by heroism or extraordinary achievement while participating in aerial flight.  The performance of the act of heroism must be evidenced by voluntary action above and beyond the call of duty.  The extraordinary achievement must have resulted in an accomplishment so exceptional and outstanding as to clearly set the individual apart from his or her comrades or from other persons in similar circumstances.

DISCUSSION AND CONCLUSIONS:

1.  His claim of entitlement to the Purple Heart was carefully considered; however, by regulation, in order to support award of the Purple Heart, there must be evidence confirming that the wound for which the award is being made was caused by or was a direct result of 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 wounded as a result of hostile action while serving in Vietnam and is entitled to award of the Purple Heart.  The evidence of record contains no orders or other documents confirming he was wounded during 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 wounded as a result of hostile action in Vietnam.

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

4.  The evidence of record shows he was awarded one Distinguished Flying Cross for the performance of heroism above and beyond the call of duty on 9 December 1967.  The evidence failed to show and he submitted no evidence to show he was awarded a second Distinguished Flying Cross.  Therefore, he is also not entitled to correction to his DD Form 214 to show a second award of the Distinguished Flying Cross.   

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)                                         AR20090021231





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ABCMR Record of Proceedings (cont)                                         AR20090021231



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