IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100008343 


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 stepped on a stake (booby trap) and cut the arch of his left foot which required stitches.  He states the medic would have put in the paperwork for his Purple Heart, but at the time he felt he didn't deserve it.  He states his foot was treated twice and later for infection.  He states all records of his injury should be in his service medical records.

3.  The applicant provides a statement from a former Soldier who was with him in the summer of 1967.

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 military personnel records show he was inducted into the Army of the United States on 21 April 1966.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 94B (Cook).

3.  The applicant was assigned to Headquarters and Headquarters Company, 4th Battalion, 39th Infantry in the Republic of Vietnam from 13 December 1966 to 
8 December 1967.

4.  Item 40 (Wounds) of the applicant's DA Form 20 does not contain any entries indicating the applicant received any wounds.

5.  Item 41 (Awards and Decorations) of the applicant's DA Form 20 does not show award of the Purple Heart.

6.  On 19 April 1968, the applicant was released from active duty.  He had completed 1 year, 11 months, and 29 days of active service that was characterized as honorable.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not show he was awarded the Purple Heart.

7.  The applicant's service medical records were not available for review.  There are no orders in his military personnel records awarding him the Purple Heart.  His name does not appear on the Vietnam Casualty Listing.

8.  The applicant submitted a statement from a fellow Soldier.  The Soldier stated he was with the applicant in the summer of 1967 when he stepped on a stake, cutting his left foot in the arch area.  He stated a medic treated him and wanted to put him in for the Purple Heart.  However, he stated the applicant felt he didn't deserve it.  He stated the applicant was also treated later for his injury to his left foot when it became infected.

9.  A review of the Awards and Decorations Computer-Assisted Retrieval System, 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 for the Purple Heart for the applicant.

10.  Army Regulation 672-5-1 (Military Awards), then in effect, provided that the Purple Heart was awarded to any member of an Armed Force or any civilian national of the United States who while serving under competent authority in any capacity with one of the U.S. Armed Services had been wounded, killed, or who had died as a result of 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 should be awarded the Purple Heart.

2.  Item 40 of the applicant's DA Form 20 does not list any wounds and he is not listed on the Vietnam Casualty Listing.

3.  The applicant's statement and the statement he submitted from a fellow Soldier were reviewed.  However, there is no substantive evidence to support their statements.   There are no records available for review showing that he was treated for wounds resulting from hostile action.

4.  In the absence of military records which show the applicant was wounded or treated for wounds resulting from hostile action, there is insufficient evidence upon 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:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.





      _______ _   _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)                                         AR20100008343





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ABCMR Record of Proceedings (cont)                                         AR20100008343



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