IN THE CASE OF:
BOARD DATE: 12 October 2010
DOCKET NUMBER: AR20100010579
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 he be awarded the Purple Heart.
2. The applicant states he was wounded in his chest and in the backside of his left shoulder by a rocket propelled grenade on 8 February 1970. He was treated for this wound at an aid station and released for duty. He developed keloids (the overgrowth of tissue beyond the site of the injury) shortly after his wound.
3. The applicant provides a Standard Form (SF) 88 (Report of Medical Examination) for examinations conducted on 31 January 1969, 10 December 1983, 12 September 1987, and 15 February 1991. He also submits his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a Department of Veterans Affairs compensation and pension exam.
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. The applicants military records show he enlisted in the Regular Army on
31 January 1969 and he was awarded the military occupational specialty of 31M (Multi-channel Transmission Systems Specialist). He served in Vietnam from
24 September 1969 to 21 September 1970 and again from 26 January to 11 July 1971. He was promoted to pay grade E-5.
3. On 12 January 1972, the applicant was honorably released from active duty.
4. On 23 March 1979, the applicant enlisted in the U.S. Army Reserve (USAR) and entered active duty in the Active Guard and Reserve (AGR) program.
5. The available records do not contain his medical records. However, his records do contain Physical Evaluation Board (PEB) proceedings that show the board convened on 29 January 1992 with accompanying medical records. None of these records mention the applicant received shrapnel wounds while he was in Vietnam.
6. The SF's 88 submitted by the applicant show:
a. on 31 January 1969, he received an entrance examination and an entry shows he had experienced problems with his left ear, his feet were also determined to show symptomatic pes planus; however, he was determined to be qualified for enlistment.
b. on 10 December 1983, an examination shows he was determined to be qualified to serve in the USAR. At the time he was using a topical cream for scars due to keloids from shrapnel wound.
c. on 12 September 1987, he was determined to be qualified for retention in the USAR. Small scars on his chest were determined to be the residuals of old keloids.
d. on 15 February 1991, he was determined to be qualified for retention in the USAR. Scars on right shoulder blade, deltoid, and mid sternum were residuals of keloids.
7. Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for wounds 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 a medical officer, and the medical treatment must have been made a matter of official record.
8. The Vietnam casualty list does not contain the applicant's name.
DISCUSSION AND CONCLUSIONS:
1. The evidence which shows the applicant was wounded by shrapnel was dated almost 12 years after he was released from active duty.
2. The evidence the applicant submitted also shows he has scars that are the residuals of keloids.
3. The applicant's PEB did not mention the applicant being wounded and his name is not on the Vietnam casualty list.
4. Unfortunately, the preponderance of the evidence fails to support the applicant's contention that he was wounded in Vietnam as a result of hostile action.
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) AR20100010579
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ABCMR Record of Proceedings (cont) AR20100010579
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