BOARD DATE: 20 July 2010
DOCKET NUMBER: AR20100000768
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:
* in February 1970 he was pulling a wounded Soldier out of a firefight and a grenade went off
* he received shrapnel to his ear and suffered hearing loss
* he was treated and a tag was filled out for him
* he received the Cross of Gallantry for the incident
3. The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge).
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 26 December 1968 for a period of 2 years. He served as a light weapons infantryman in Vietnam from 29 May 1969 to 3 May 1970. On 14 December 1970, he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining military service obligation.
3. The applicant's DD Form 214 does not show the Purple Heart as an authorized award.
4. There are no orders for the Purple Heart in the applicants 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. A DA Form 3349 (Medical Condition - Physical Profile Record), dated 16 June 1970, shows the applicant was issued a permanent profile "3" for bilateral hearing loss. However, there is no evidence of record which shows the applicant's hearing loss is a result of hostile action in Vietnam.
7. 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 received shrapnel to his ear when a grenade went off during a firefight in February 1970 in Vietnam and he suffered hearing loss.
2. The applicant's DA Form 3349 for bilateral hearing loss was noted. However, there is no evidence of record which shows the applicant's hearing loss is a result of hostile action in Vietnam.
3. There is no evidence of record which shows the applicant was wounded or injured as a result of hostile action in Vietnam. There are no orders for the Purple Heart in the available records. 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) AR20100000768
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
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