IN THE CASE OF:	  

		BOARD DATE:	  2 September 2010

		DOCKET NUMBER:  AR20100000671 


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, in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or discharge) to show he was awarded the Purple Heart (Second Oak Leaf Cluster).

2.  The applicant states:

* He received his first Purple Heart by itself on 25 March 1968
* His second and third Purple Hearts were issued very close together (on 12 April 1968 and 23 April 1968) so he was awarded the Purple Heart with Bronze Oak Leaf Cluster 
* He has three Purple Hearts, not two, as listed on his DD Form 214

3.  The applicant provides:

* DD Form 214
* Page 4 of his DA Form 20 (Enlisted Qualification Record)
* General Orders Number 2426, dated 13 April 1968
* General Orders Number 2805, dated 28 April 1968

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 on 23 August 1967 and he completed training as a light weapons infantryman.  He arrived in Vietnam on 
10 February 1968.

3.  On 13 April 1968, General Orders Number 2426 were published awarding the applicant the Purple Heart for wounds received in connection with military operations against a hostile force on 25 March 1968.

4.  On 28 April 1968, General Orders Number 2805 were published awarding him the Purple Heart (First Oak Leaf Cluster) for wounds received in connection with military operations against a hostile force on 23 April 1968.

5.  The applicant returned to the Continental United States on 28 March 1969.  He was honorably released from active duty as an overseas returnee on this date and he was transferred to the United States Army Reserve Control Group (Annual Training) to complete his service obligation.

6.  His DD Form 214 show the following awards:

* Republic of Vietnam Campaign Medal
* Vietnam Service Medal
* Air Medal
* Combat Infantryman Badge
* Purple Heart (Second Award)
* Sharpshooter Marksmanship Qualification Badge (Rifles M-14 and M-16)
* Two Overseas Service Bars

7.  The applicant's DA Form 20 lists the following wounds and dates:

* Fragment wound to his chest on 25 March 1968
* Fragment wound to his left arm on 12 April 1968
* Fragment wound to his left leg on 23 April 1968


8.  His DA Form 20 also shows he was awarded a Purple Heart in General Orders Number 2426 and a Purple Heart in General Orders Number 2805.

9.  A review of the Vietnam Casualty Roster shows the applicant was wounded in action on 25 March 1968 and 23 April 1968.  His name is listed only twice on the roster.

10.  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 awarding the applicant a third award of the Purple Heart.

11.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.

12.  Army Regulation 600-8-22 states, when contemplating an award of the Purple Heart, the key issue that commanders must take into consideration is the degree to which the enemy caused the injury.  The fact the proposed recipient was participating in direct or indirect combat operations is a necessary prerequisite, but is not sole justification for the award.

13.  Army Regulation 600-8-22 (Military Awards) provides that a Purple Heart is authorized for the first wound suffered under conditions indicated above, but for each subsequent award an Oak Leaf Cluster will be awarded to be worn on the medal or ribbon.  Not more than one award will be made for more than one wound or injury received during the same incident or from the same missile, force, explosion, or agent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions concerning award of the Purple Heart (Second Oak Leaf Cluster) were considered along with the documentation he submitted in support of his application.  

2.  After a thorough review of the available evidence it appears the applicant is not entitled to a correction of his DD Form 214 to show an additional award of the Purple Heart.

3.  While his DA Form 20 does show he was wounded on three separate dates his DA Form 20 also shows he was issued only two awards of the Purple Heart.  The Vietnam Casualty Roster show the same dates of injury as General Orders Number 2426 and General Orders Number 2805.  ADCARS does not contain orders awarding him the Purple Heart (Second Oak Leaf Cluster).

4.  He has provided no evidence and the available records do not show the wound he received to his left arm on 12 April 1968 required medical treatment to the degree that would have warranted the issuance of a Purple Heart.  In accordance with Army Regulation 600-8-22, the wounds or injuries for which the Purple Heart is awarded must have required treatment by medical personnel and records of the medical treatment must have been made a matter of official record.

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)                                         AR20100000671



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ABCMR Record of Proceedings (cont)                                         AR20100000671



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