IN THE CASE OF:	  

		BOARD DATE:	  6 July 2010

		DOCKET NUMBER:  AR20090021838 


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 never received a Purple Heart for wounds received in combat in the Republic of Vietnam (RVN).  While serving with the Long Range Reconnaissance Patrol (LRRP), 173rd Airborne Brigade he sustained a shrapnel wound near the perimeter of Ben Hoa Air Base.  He states he was medically evacuated to Company B (Medical), part of the Support Battalion, 173rd Airborne Brigade.  He remembers another Soldier received medical treatment for the same incident.  He has searched for his military medical records and cannot locate them.  He asks the Board to forward him his medical records if it has access to them.  In addition, after attending a military reunion he was encouraged to proceed for his just due award with two veterans willing to write him affidavits.  He asks the Board to provide him the format for the affidavits.

3.  The applicant does not provide any supporting documents with 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.  The applicant was inducted into the Army of the United States on 30 September 1965.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  A review of the applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 4 May 1966 to 3 July 1967.

4.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not contain an entry to show the applicant received a wound in combat.

5.  On 10 July 1967, the applicant was honorably released from active duty (REFRAD) and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his statutory military service obligation.  Upon his REFRAD, he received a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) showing he completed 1 year, 9 months, and 11 days of active service with 1 year, 2 months, and 6 days of foreign service in the U.S. Army, Pacific.

6.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he received the National Defense Service Medal, Vietnam Service Medal, RVN Campaign Medal with Device (1960), and the Parachutist Badge.

7.  The applicant's name is not listed on the Vietnam Casualty Roster as being injured during combat operations.

8.  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 U.S. Army Human Resources Command, failed to reveal any orders awarding the applicant the Purple Heart.

9.  A search of the applicant's Official Military Personnel File (OMPF) shows a letter, dated 11 September 1975, was sent to the applicant telling him that morning reports of the LRRP, Company E, 17th Calvary, 173rd Airborne Division failed to show he received wounds in action.

10.  References:

	a.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded to any member who, while serving under competent authority in any capacity with one of the Army Services, has been wounded or killed or who has died or may hereafter die after being wounded:

		(1)  in any action against an enemy of the United States;

		(2)  in any action with an opposing armed force of a foreign country in which the Armed Forces of the United States are or have been engaged;

		(3)  while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party;

		(4)  as a result of an act of any such enemy of opposing armed forces; or

		(5)  as a result of an act of any hostile foreign force.

		(6)  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record.

	b.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9, of the version in effect at the time, provided that a brief description of wounds or injuries (including injury from gas) requiring medical treatment that were received through hostile or enemy action, including those requiring hospitalization, would be entered in item 40 of the DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in item 40.

	c.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity deciding cases on the evidence of record.  It is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he has searched for his military medical records and asks the Board to forward these records to him if the Board has access of them.  He contends these medical records would show he was wounded in action while serving in the RVN, therefore, he would be entitled to award of the Purple Heart.  In addition, he asks for an affidavit format so two veterans can prepare their statements of support. 

2.  The ABCMR is not an investigative body.  Therefore, it cannot assist the applicant with searching for his medical records.  The applicant is advised that requests for records should be forwarded to the National Personnel Records Center (NPRC), ATTN: Army Reference Branch, 9700 Page Boulevard, St. Louis, Missouri 63132-5200.  Requests to the NPRC may be submitted via a letter or completing a Standard Form 180 (which can be found at http://www.archives.gov/st-louis/military-personnel/index.html.)  Additionally, a request can be submitted through an on-line application at http://www.archives.gov/veterans/evetrecs/.

3.  The ABCMR considered this application based on the available evidence of record.

4.  The applicant's name is not listed on the Vietnam casualty roster nor was a Purple Heart award order published and filed in the ADCARS or his official military personnel file.  Therefore, in the absence of military and medical records showing the applicant's injury resulted from enemy forces, there is insufficient evidence upon which to base award of the Purple Heart.

5.  The applicant also requests the format for an affidavit.  There is no specific format required for an affidavit.  However, the information in the affidavit should provide detailed facts surrounding the applicant's wounding in the RVN, to include date, location, and injuries incurred.  The affidavit should also be notarized by a notary public.

6.  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.  The applicant has failed to submit evidence that sufficiently shows his injury was the result of enemy action.


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)                                         AR20090021838



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ABCMR Record of Proceedings (cont)                                         AR20090021838



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