IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100010922 


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 for wounds received in Vietnam.

2.  The applicant states he was wounded in Vietnam (head injury) and he was never awarded the Purple Heart.

3.  The applicant provides:

* a copy of his DA Form 20 (Enlisted Qualification Record)
* a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 31 October 1968
* a copy of his discharge orders from the U.S. Army Reserve (USAR), dated 5 January 1972
* a copy of his DD Form 4 (Enlistment Record), dated 18 January 1966

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 record, less his medical record, which was loaned to the Veterans Administration in St. Louis, MO in 1969, show he enlisted in the Regular Army in St. Louis on 18 January 1966 for a period of 3 years and training as a construction equipment operator.  He completed his training at Fort Leonard Wood, MO and he was transferred to Germany on 4 June 1966 for duty as a heavy equipment operator.

3.  He departed Germany on 18 December 1966 for assignment to Vietnam.  He arrived in Vietnam on 21 February 1967 and he was initially assigned to Company B, 87th Engineer Battalion as a construction equipment operator.  He was promoted to the pay grade of E-5 on 17 June 1967.

4.  On 5 December 1967, the applicant submitted a request for transfer to the 14th Engineer Battalion (Combat) and, if approved, he agreed to extend his tour in Vietnam for 6 months.  His request was approved on 7 December 1967 and he was granted a 30-day special leave on 5 March 1968.

5.  On 12 April 1968, he was transferred to the 14th Engineer Battalion (Combat) for duty as a tractor operator.

6.  His records show that he was transferred as a patient to a hospital in Vietnam on 15 July 1968 and then to a hospital in Japan; however, the available records do not indicate the reason for his patient status nor do they indicate that he was wounded in action.

7.  On 8 September 1968, he was transferred to Brooke General Hospital (BGH) at Fort Sam Houston, TX.

8.  On 22 October 1968 a message was dispatched from the Patient Personnel Branch at BGH to the Commander of the 249th General Hospital in Japan inquiring as to whether the applicant had been awarded a Purple Heart for his injuries.  There is no evidence to show that a reply was ever received in response to BGH's inquiry.

9.  On 31 October 1968 the applicant was honorably released from active duty (REFRAD) under the provisions of Army Regulation 635-200 (Personnel 

Separations - Enlisted Personnel), chapter 5, as an enlisted member of a medical holding unit who, upon completion of hospitalization, did not intend to reenlist in the Regular Army.  He had served 2 years, 9 months, and 13 days of total active service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 issued at the time of his REFRAD shows the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), and the Marksman Marksmanship Qualification Badge with Rifle (M-14) Bar.

10.  A review of the Vietnam Casualty Listing failed to show an entry for the applicant.  Additionally, a search of the United States Army Human Resources Command Awards and Decorations Computer-Assisted Retrieval System (ADCARS), a web-based index containing roughly 611,000 general orders issued between 1965 and 1973 for the Vietnam era, failed to reveal an order awarding the applicant the Purple Heart.

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound/injury sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound/injury was a result of hostile action, that the wound/injury must have required treatment by a medical officer, and that the medical treatment was made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  While the sincerity of the applicant’s claim that he is entitled to award of the Purple Heart is not in doubt, there simply is insufficient evidence in the available records to substantiate the applicant’s claim.

2.  There is no evidence in the available records to show when the applicant sustained his wound, whether the wound was the result of enemy action, the nature of his injury, and the extent to which treatment was required.

3.  It should also be noted that the absence of the applicant’s medical record, coupled with the absence of entries in his personnel record, makes it difficult at best to ascertain what happened in the applicant’s case.  Inasmuch as the Board is not an investigative agency, the burden of proving his case rests with the applicant.

4.  Therefore, in the absence of sufficient evidence to establish that he meets the criteria for award of the Purple Heart, there appears to be no basis to grant his request at this time.

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 the United States during the Vietnam War.  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)                                         AR20100010922



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ABCMR Record of Proceedings (cont)                                         AR20100010922



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