IN THE CASE OF:
BOARD DATE: 28 September 2010
DOCKET NUMBER: AR20100008359
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 a second award of the Purple Heart (correctly known as the Purple Heart with First Oak Leaf Cluster).
2. The applicant states:
* He received one award of the Purple Heart but he had two injuries
* His second injury occurred on 15 May 1968
3. The applicant provides:
* Two DA Forms 8-274 (Medical Condition Physical Profile Record)
* Numerous clinical records
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. Having prior service in the Army National Guard, the applicant enlisted in the Regular Army on 10 October 1968. He served as an infantryman in Vietnam from 11 November 1967 to 10 November 1968 and from 1 December 1970 to
2 October 1971. He remained on active duty through continuous reenlistments until he retired on 30 September 1985 in the rank of master sergeant.
3. The applicants DD Forms 214 (Report of Transfer or Discharge, Report of Separation from Active Duty, Certificate of Release or Discharge from Active Duty) show, among other awards, one award of the Purple Heart.
4. Item 40 (Wounds) on the applicant's DA Form 20 (Enlisted Qualification Record) shows he was injured on 19 February 1968 (gunshot wound to right foot) and 17 May 1968 (right shoulder injured during mortar attack).
5. The applicant's name does not appear on the Vietnam casualty roster.
6. Headquarters, 93rd Evacuation Hospital General Orders Number 51, dated
20 February 1968, show the applicant received the Purple Heart for wounds received in action on 19 February 1968.
7. There are no orders in the available records which show the applicant received a second award of the Purple Heart.
8. 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 any orders for award of the Purple Heart.
9. The applicant provided a clinical record, dated 10 July 1968, which shows he fell from a truck sustaining a shoulder injury on 15 May 1968 in Vietnam. This medical record shows the entry "AI" [accidental injury]. A second clinical record shows the applicant was in a truck accident on 15 May 1968.
10. 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. The regulation also states that the bronze oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Purple Heart.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he received one award of the Purple Heart but he had two injuries and that his second injury incurred on 15 May 1968.
2. Orders show the applicant received the Purple Heart for wounds received in action on 19 February 1968 which is properly reflected on his DD Forms 214.
3. The entry on the applicant's DA Form 20 which shows he was injured on
17 May 1968 (right shoulder injured during mortar attack) was noted. However, medical evidence of record provided by the applicant shows he was accidentally injured on 15 May 1968 in Vietnam when he fell out of a truck and injured his shoulder, not as a result of hostile action. There is no evidence in the applicant's service personnel record which shows that he was wounded or injured as a result of hostile action on any other date than 19 February 1968. Regrettably, there is insufficient evidence on which to award a second award of the Purple Heart.
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) AR20100008359
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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