IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100007810


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 (PH).

2.  The applicant states the following:

	a.  he never received the PH for being wounded in combat while serving in the Republic of Vietnam (RVN);

	b.  the company medic and company clerk were in the process of rotating out of the country and his paperwork was not forwarded through the appropriate channels; and

	c.  his injury is documented in his military record.

3.  The applicant provides a self-authored statement and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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.  The applicant's record shows he enlisted in the Regular Army on 6 March 1968.  He was trained in and awarded military occupational specialty 11E (Armor Crewman).  Specialist five is the highest rank that he attained while serving on active duty.

3.  The applicant's DA Form 20 (Enlisted Qualification Record), item 31 (Foreign Service), shows he served in the Republic of Vietnam (RVN) from 8 March 1969 to 7 March 1970.  Item 40 (Wounds) is blank and the PH is not included in the list of awards contained in Item 41 (Awards and Decorations).

4.  The applicant's record is void of any orders or other documents that indicate he was ever awarded the PH by proper authority while serving on active duty.  The record does not include any medical treatment records that indicate he was ever treated for a combat-related wound or injury while serving in the RVN.

5.  The applicant’s record includes a Standard Form 519 (Clinical Record - Radiographic Reports) dated 18 November 1969.  It shows the applicant sustained a laceration to his right face and hematoma to his left shoulder.

6.  The applicant’s record includes a Standard Form 513 (Clinical Record – Consultation Sheet) dated 22 December 1969.  It shows the applicant had persistent photophobia [abnormal visual intolerance to light] and retrobulbar [behind the eyeballs] pain three to four weeks after he sustained a fragment wound to his right malar [cheek or cheekbone] ridge as a result of a mine blast.  There is no evidence to indicate if this mine blast occurred in combat or that it was the direct result of enemy action.

7.  On 10 January 1972, the applicant was honorably released from active duty after completing a total of 3 years, 10 months, and 5 days of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 does not show award of the PH.

8.  During the processing of this case, a member of the Board staff reviewed the DA Vietnam casualty roster.  There is no entry pertaining to the applicant on this list of RVN casualties.

9.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH.  It states that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that the wound required treatment by medical personnel, and a record of this medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contends he should be awarded the PH for being wounded in combat while serving in the RVN.

2.  By regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that the wound required treatment by medical personnel, and a record of this medical treatment must have been made a matter of official record.  In this case, the evidence of record fails to corroborate the applicant's claim that he sustained a wound/injury in the RVN warranting award of the PH.

3.  Item 40 of the applicant's DA Form 20 is blank which indicates he was not wounded in action.  Further, there are no orders or other documents on file in his record that indicate he was ever awarded the PH by proper authority or that he ever pursued award of the PH while he was on active duty and subsequent his RVN service from 7 March 1970 to 10 January 1972.

4.  While the Standard Forms 513 and 519 confirm the applicant sustained visual impairment and a fragment wound to his right cheek as a result of a mine blast and that he received medical treatment for this wounding, it does not provide the facts and circumstances surrounding this wounding to confirm that it was sustained as a result of enemy action.

5.  The applicant's name is not included on the Vietnam casualty roster, the official DA list of RVN battle casualties.  Absent any evidence of record to corroborate the applicant's wounding was sustained in combat, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.

6.  The applicant and all others concerned should know that this action related to award of the PH in no way diminishes the sacrifices made by him in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.


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)                                         AR20100007810





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)