IN THE CASE OF:	  

		BOARD DATE:	  19 August 2010

		DOCKET NUMBER:  AR20100009377 


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 he would like to receive the PH for residuals of a shrapnel wound in his lower right leg he received during his service in the Republic of Vietnam (RVN) from 1967 - 1968.  He also indicates the Department of Veterans Affairs (VA) granted him service-connection for his disabilities on    27 October 1997.

3.  The applicant provides a witness statement and his VA Rating Decision, dated 22 September 2003.

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 was inducted into the Army of the United States and entered active duty on 24 August 1966.  He was trained, awarded, and served in military occupational specialty (MOS) 11D (Armor Intelligence Specialist).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) includes an entry in Item 31 (Foreign Service) which shows he served in the RVN from 19 February 1967 to 14 February 1968.  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 Official Military Personnel File (OMPF) is void of any orders or other documents that indicate he was ever recommended for or awarded the PH. The OMPF is also void of any medical treatment records indicating he was ever treated for a combat-related wound.

5.  On 23 August 1968, the applicant was honorably released from active duty (REFRAD) after completing 2 years of total active service.  

6.  The applicant provides a witness statement from an individual who indicates he was assigned with the applicant in the RVN.  He states in late fall or early winter of 1967 his tank was in the firebase when the applicant's armored personnel carrier pulled in for the night.  He further states the applicant had sustained a shrapnel injury to his right leg just at the boot line.  He further states the applicant received medical treatment inside the field doctor's tent at that time.

7.  The applicant provides a VA Rating Decision that indicates he was granted service-connection with an evaluation of 10 percent (%) for “reflex sympathetic dystrophy, right leg, residuals of shrapnel wound” and 10% for “scar, right leg, residual of shrapnel wound” on 27 October 1997.  This document contains no indication that the service medical records documented the circumstances under which the applicant incurred the shrapnel wound.

8.  During the processing of this case, a member of the Board’s staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  The applicant's name is not included on this casualty list.

9.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 2-8 contains the 
regulatory guidance pertaining to awarding the PH.  It states, in pertinent part, 
that the PH is awarded to any member who has been wounded or killed in action. A wound is defined as an injury to any part of the body from an outside force or agent sustained under conditions defined by this regulation.  In order to support awarding a member the PH, it is necessary to establish that the wound, for which the award is being made, required treatment by medical personnel.  This treatment must be supported by records of medical treatment for the wound or injury received in action and must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the PH.

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 of entitlement to 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.

4.  Finally, the applicant's name is not included on the Vietnam Casualty Roster, the official DA list of RVN battle casualties.  Absent any evidence submitted to corroborate that he was wounded as a result of enemy action and that he was treated for a combat-related wound by military medical personnel while serving in the RVN is insufficient and the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.

5.  The VA Rating Decision was also carefully evaluated.  However, this document, while granting the applicant service-connection disability rating for residuals of shrapnel wound, does not indicate the facts and circumstances surrounding this wounding.  As a result, this document also does not confirm the shrapnel wound(s) was received as a result of enemy action.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

7.  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)                                         AR20100009377



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100009377



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1