IN THE CASE OF:
BOARD DATE: 26 October 2010
DOCKET NUMBER: AR20100012023
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 that he be awarded the Purple Heart.
2. The applicant states he should have been awarded the Purple Heart when he was wounded in Vietnam in May 1971.
3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and military medical records.
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 that he enlisted in the Regular Army on 19 May 1970, was awarded the military occupational specialty of light weapons infantryman, served in Vietnam from 31 December 1970 to 28 June 1971, and was promoted to pay grade E-4.
3. The medical records provided by the applicant show that on 21 May 1971, while assigned to Company E, 2nd Battalion, 5th Cavalry, 1st Cavalry Division as a senior scout observer, he was treated for a shrapnel wound to his right ear. It was a superficial wound and the fragment was removed. He received follow-up medical care for his ear on 30 and 31 May, and 1, 5, and 11 June 1971 (the ear became infected). While all the medical entries show the treatment was for a shrapnel wound, none indicate the shrapnel wound was incurred in combat.
4. On 20 January 1972, the applicant was honorably released from active duty as an early separation in order to join an Army National Guard unit.
5. There are no orders in the applicant's records awarding him the Purple Heart. The applicant's DA Form 20 (Enlisted Qualification Record) has no entry in Item 40 (Wounds). The Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 does not show Purple Heart orders for the applicant. The Vietnam Casualty List does not contain the applicant's name.
6. 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.
DISCUSSION AND CONCLUSIONS:
1. While the medical records provided by the applicant make it clear that he was treated for a minor shrapnel wound to his ear which later became infected, there is no evidence that the shrapnel was a result of hostile action.
2. In the absence of corroborating evidence on his DA Form 20, Vietnam Casualty List, ADCARS, or his military records, there is insufficient evidence on which to grant his request.
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) AR20100012023
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ABCMR Record of Proceedings (cont) AR20100012023
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