IN THE CASE OF:	

		BOARD DATE:	  24 August 2010

		DOCKET NUMBER:  AR20100008090 


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 correction of his records to show award of the Purple Heart.

2.  The applicant states he did not receive a Purple Heart for wounds he received in close combat in the Republic of Vietnam (RVN) on 6 June 1966.  He wants to be awarded the Purple Heart so it will be recorded on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

3.  The applicant provides a copy of his DD Form 214 and two eyewitness statements 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 enlisted in the Regular Army on 26 May 1964 and was discharged on 26 September 1965 for immediate reenlistment.  He reenlisted on 27 September 1965 for a period of 4 years.

3.  He served in RVN from 21 November 1965 to 4 November 1966.  The evidence of record does not show he was wounded in action during his tour in Vietnam.

4.  His DA Form 20 (Enlisted Qualification Record) does not list the Purple Heart in item 41 (Awards and Decorations).

5.  The applicant's personnel records do not contain orders which show he was awarded the Purple Heart.  His DA Form 20 does not list any wounds as a result of hostile action in item 40 (Wounds).  His name is not included on the Vietnam casualty roster.

6.  The applicant's medical records are not available.

7.  The applicant was released from active duty on 26 September 1969.  His DD Form 214 does not show entitlement to award of the Purple Heart.

8.  The applicant provided a letter of support from his former commander of Battery B, 2nd Battalion, 320th Field Artillery (Airborne), 1st Brigade, 101st Airborne Division, who stated the following:

* applicant was a member of the battery's fire direction element
* battery was deployed on the night of 6 or 7 June near Tou Morong in the central highlands of the RVN
* tent was hit by incoming mortar round and it exploded
* everyone inside the tent was wounded by shell fragments and he was standing beside applicant when the incident occurred
* engagement lasted until the next morning and approximately one-third of the unit was killed or wounded
* applicant and others stayed and did what needed to be done until the enemy was driven off

9.  The applicant provided a letter of support from his former fire direction center (FDC) team chief of Battery B, 2nd Battalion, 320th Field Artillery (Airborne), 1st Brigade, 101st Airborne Division, who stated the following:

* applicant was under his command as a member of his FDC team
* battery was deployed on the night of 6 or 7 June near Tou Morong in the central highlands of the RVN
* position was attacked and he heard three mortar rounds land and explode
* fourth mortar round landed and exploded inside the FDC tent
* everyone in the tent was injured, including the applicant
* applicant had wounds on his back, legs, and buttocks
* shrapnel flew in every direction
* none of them were in an immediate life-threatening situation from wounds in their own assessment at the time
* they used their individual combat medical supplies to treat their wounds
* the battle lasted into daylight and he believes 30 percent of the unit was killed or wounded
* none of them could seek further medical attention until after the battle ended and the worst casualties were treated
* applicant continued to perform his assigned duty even though he was wounded
* he was awarded the Purple Heart 4 years after the battle and the applicant deserves better

10.  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, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he did not receive a Purple Heart for wounds he received in close combat in the RVN on 6 June 1966 and he wants to be awarded the Purple Heart so it will be recorded on his DD Form 214.  However, no evidence of record is available which confirms he was wounded as a result of hostile action.

2.  The applicant's service record does not contain orders for the Purple Heart.  No medical documentation is available which shows he was wounded as a result of hostile action.  His name is not listed on the Vietnam casualty roster.

3.  By regulation, in order to award the Purple Heart it is necessary to establish that a Soldier was wounded in action, that the wound required treatment by medical personnel, and the treatment must have been made a matter of official record.

4.  In the absence of any other corroborating evidence of record which shows the applicant was wounded or injured as a result of hostile action, regrettably there is insufficient evidence upon which to base correction of his records to show award of the Purple Heart in this case.

5.  The applicant's eyewitness statements were noted.  However, in the absence of supporting medical records, these statements alone are not sufficiently mitigating to grant 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)                                         AR20100008090



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)