IN THE CASE OF:	  

		BOARD DATE:	    26 August 2010

		DOCKET NUMBER:  AR20100009064 


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 was wounded in action with mortar fragments in the right arm on 20 September 1971 while serving with Company B, 2nd Battalion, 5th Cavalry Regiment in Vietnam.

3.  The applicant provides the following documents:

* Statement from his former platoon leader
* Statement from a former platoon member
* Letter from the U.S. Army Joint Services Records Research Center
* DA Form 1594 (Daily Staff Journal or Duty Officer's Log) for 2nd Battalion, 5th Cavalry
* Vietnam Combat Certificate
* DA Form 1 (Morning Report) 
* DA Form 305-4 (Unit Manning Roster)

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 records show he was inducted into the Army of the United states on 18 May 1970 and held military occupational specialty 11B (Light Weapons Infantryman).

3.  His records further show he served in various units in the Republic of Vietnam from on or about 12 October 1970 to on or about 11 October 1971.  He was assigned to the 2nd Battalion, 5th Cavalry, from on or about 1 August 1971 to on or about 1 October 1971.

4.  He was honorably released from active duty on 23 December 1971 and he was transferred to the U.S. Army Reserve Control Group to complete his remaining Reserve obligation.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the National Defense Service Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), overseas service bar, and Sharpshooter Marksmanship Qualification Badge with Rifle and Grenade Bars. 

6.  Headquarters, 3rd Brigade (Separate) Special Orders Number 146, dated 2 September 1971, awarded him the Combat Infantryman Badge on 15 August 1971 while assigned to Company B, 2nd Battalion, 5th Cavalry.

7.  On 17 April 2009, he was issued a DD Form 215 (Correction to DD Form 214) that added the Army Good Conduct Medal, Combat Infantryman Badge, and two bronze service stars to be affixed to his already-awarded Vietnam Service Medal.

8.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) shows a blank entry and item 41 (Awards and Decorations) does not show award of the Purple Heart.

9.  His records do not contain general orders which authorized him award of the Purple Heart.

10.  His name is not shown on the Vietnam casualty roster and his medical records are not available for review with this case.

11.  During the processing of this case, a member of the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System maintained by the Military Awards Branch of the U.S Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any Purple Heart orders on file for him. 

12.  He submitted the following documents:

	a.  A statement, dated 4 March 2007, from his former platoon leader who attests that on 20 September 1971, the applicant's unit, B Company, 2nd Battalion, 5th Cavalry, engaged hostile forces after a day of resupply operations at the Xuan Loc region.  The 2nd platoon leader was killed and the unit sustained 3 wounded in action casualties.  The applicant was one of them.  He knows of this operation first hand because he was there that day at Forward Support Base Mace when they medically evacuated the wounded.  He took over as a platoon leader the very next day.

	b.  A statement, dated 22 January 2010, from a former platoon member who attests the applicant was wounded in action on 20 September 1971.  The entire unit was involved in combat on that day and the platoon leader was killed in action.  Several other members were wounded.  One of them was the applicant.  He was hit in his right hand and wrist area.  He and the applicant helped carry the platoon leader to the helicopter for evacuation.  He specifically remembers the applicant carrying the platoon leader's weapon in addition to his own.  

	c.  A letter, dated 24 January 2008, from the U.S. Army Joint Services Records Research Center, Alexandria, VA, wherein the Director of that center states that his office researched the history of the 2nd and 3rd platoons of Company B, 2nd Battalion, 5th Cavalry.  He was able to confirm the company engaged the enemy on 20 September 1971.  He also confirmed the death of the platoon leader and combat injuries to 5 other members, by name, one of which had the same last name as that of the applicant but a different first name.  The applicant contends this name is erroneously listed as that of someone else's but it is in fact his. 

   d.  A copy of the 2nd Battalion, 5th Cavalry's DA Form 1594 for 20 September 1971.  An entry at 1600 hours confirms the unit engaged the enemy on that day and suffered 6 casualties, one of whom was killed and 5 others were wounded.  Additionally, an entry at 1605 hours confirms B Company called for medical evacuation of the wounded. 
	e.  A Vietnam Combat Certificate confirming his service with the 2nd Battalion, 5th Cavalry, in Vietnam from 20 July 1971 to 30 September 1971.

	f.  A copy of Company B's morning report for 10 August 1971 confirming his reassignment (gain) to B Company from Headquarters and Headquarters Company, of the same battalion.

	g.  A copy of Company B's morning report for 29 September 1971 confirming his reassignment (loss) from B Company to Headquarters, 3rd Brigade.

	h.  A copy of B Company's unit manning roster as of 30 November 1971. 

13.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against and enemy or 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 military 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.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.  

3.  His record is void of any orders that show he was awarded the Purple Heart; his name is not shown on the Vietnam casualty roster; his DA Form 20 does not indicate any combat wounds; and his medical records are not available for review with this case.  

4.  The issue of the difference in first names mentioned in the 24 January 2009 letter from the U.S. Army Joint Services Records Research Center, Alexandria, VA is also noted.  Additionally, the witness statements submitted by the former platoon leader and a former platoon member are noted.  However, there is no additional documentary evidence to support his contention that the listed name is his and not someone else's.  Notwithstanding their and the applicant's sincerity, in the absence of additional documentary evidence that conclusively shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidence upon which to award him 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)                                         AR20100009064





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ABCMR Record of Proceedings (cont)                                         AR20100009064



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