IN THE CASE OF:	  

		BOARD DATE:	  7 October 2010

		DOCKET NUMBER:  AR20100011340 


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 the doctor who treated him for his injuries in Vietnam asked if he wished to have the Purple Heart and he declined.  Getting older, he believes that his youthful decision was a poor one, and he wishes to receive the award.  He further states that he was injured and hospitalized as a result of direct combat action.

3.  The applicant provides:

* a DA Form 3349 (Medical Condition - Physical Profile Record)
* a letter to a U.S. Senator from a Clay County (MN) Veteran Service Officer
* a self-authored statement
* two Standard Forms 502 (Clinical Record - Narrative Summary)
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a page from a DA Form 20 (Enlisted Qualification Record)

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.  After service in the Army National Guard and U.S. Army Reserve, the applicant enlisted in the Regular Army on 25 April 1966.  He was trained in and awarded military occupational specialty 64B (Heavy Vehicle Driver).  On 6 June 1969, he was honorably discharged upon expiration of his term of service.

3.  A DA Form 20 shows in item 31 (Foreign Service) the applicant was credited with service in the U.S. Army Pacific (USARPAC)-Vietnam from on or about      25 June 1967 to on or about 24 June 1968.  Item 38 (Record of Assignments) shows he was assigned as follows:

* on or about 29 June 1967 to Headquarters and Headquarters Company, 2d Battalion, 35th Infantry, 25th Infantry Division  
* on or about 26 March 1968 to the 249th General Hospital, Japan
* on or about 9 April 1968 to Fitzsimons General Hospital, Denver, CO
* on or about 11 April 1968 to a casual status en route to Fort Leonard Wood, MO

Item 40 (Wounds) is blank.  Item 41 (Awards and Decorations) does not show he was awarded the Purple Heart.

4.  The applicant's DD Form 214 does not show in item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) that he was awarded the Purple Heart.  

5.  The applicant's service medical records are not available for the Board to review.

6.  The applicant's Official Military Personnel File does not contain documentation showing he was injured in combat or documentation of medical treatment he received at the time of his medical evacuation from Vietnam.  

7.  The applicant's name does not appear on the Vietnam Casualty Roster.

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 U.S. Army Human Resources Command, failed to reveal orders announcing award of the Purple Heart to the applicant.

9.  The applicant provides two Standard Forms 502.

	a.  The first shows he was hospitalized for treatment of severe malaria from 
8 August to 15 August 1967.  The form shows he was also diagnosed with a furuncle and cellulitis around the furuncle.  The form does not show he was treated for a back injury received in combat.

	b.  The second shows he was hospitalized for treatment of lumbo-sacral strain from 23 November to 29 November 1968.  This form includes the following comments: "This is a 23 year old single white male, active duty [U.S. Army], who was involved in a back injury in [Vietnam] July 1967.  Following this a laminectomy was done at Ft. Leonardwood [sic] in August 1968, with subsequent right sided patchy paresthesia."

10.  The DA Form 3349 provided by the applicant, dated 4 February 1969, shows he was medically qualified for duty with permanent limitations and that he was returned to his unit for duty.

11.  In his account of the events leading to and following his injury, the applicant states, in effect, that on 8 August 1967, his unit was under fire at "Doc toh."  The concussion from a rocket blew him off the top of a bunker and he injured his back.  Helicopters flying overhead began to drop "liquid" and flares.  The liquid landed on his hand and the back of his neck and the next morning his hands and neck were raw and bloody.  He went to sick bay for treatment for two weeks and was eventually sent to Cam Ranh Bay.  He was in the hospital from 8 August to 15 August 1967.  At a later date he was medically evacuated from Vietnam and taken to the 249th General Hospital in Japan because of severe malaria, the injury to his back, and skin disease.  From there he was sent to Fitzsimons General Hospital and to Fort Leonard Wood. 

12.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against an 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 medical personnel, and the medical treatment must have been made a matter of official record.




DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for award of the Purple Heart.

2.  The applicant states he incurred an injury to his back in combat on 8 August 1967.  The evidence of record shows he was hospitalized on that date with severe malaria and later received treatment for symptoms related to a back injury incurred in Vietnam.  However, other than his own statement, there is no evidence showing he was wounded as a result of hostile action.  In the absence of official documentation substantiating his statement, there is insufficient evidence to verify his entitlement to the Purple Heart.

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

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)                                         AR20100011340



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ABCMR Record of Proceedings (cont)                                         AR20100011340



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