IN THE CASE OF:
BOARD DATE: 19 October 2010
DOCKET NUMBER: AR20100012322
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 correction of the 31 December 1973 DD Form 214 (Report of Separation from Active Duty) of her deceased spouse, a former service member (FSM), to show award of the Purple Heart.
2. The applicant states, in effect, that the FSM is entitled to the award of the Purple Heart for an injury in Vietnam and/or for receiving 100 percent disability for combat related Agent Orange exposure.
3. The applicant provides a copy of the FSM's death certificate and an Adjustment to his Previous Combat Related Special Compensation (CRSC) Decision Claim.
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 FSM's military records show he enlisted in the Regular Army (RA) on
8 December 1948 and was honorably discharged on 25 May 1950 to enter into the United States Military Academy (West Point). The FSM was appointed as a second lieutenant in the RA and entered active duty on 4 June 1954. He served in the Republic of Vietnam from 21 September 1968 to 12 September 1969 and was honorably retired on 31 December 1973.
3. Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the FSM's DD Form 214 does not list the Purple Heart as an authorized award.
4. The available records contain no documentation which shows the FSM sustained wounds or was treated for wounds incurred as a result of hostile action.
5. The records contain no evidence or any general orders awarding the FSM the Purple Heart and his name is not listed on the Vietnam casualty roster.
6. The copy of the death certificate shows the FSM died on 13 November 2008.
7. The applicant provided an Adjustment to the FSM's CRSC Decision Claim dated 10 September 2007, that shows the FSM was granted a 100 percent disability rating for Malignant Growth Genitournary Area and Non-Hodgkin's Lymphoma.
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 United States Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the FSM.
9. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound 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. The fact the applicant provided documentation showing the FSM was granted 100 percent CRSC for Malignant Growth Genitournary Area and Non-Hodgkin's Lymphoma is not sufficient evidence to conclude that he is entitled to the award of the Purple Heart. The CRSC decision does not provide evidence sufficiently compelling to overcome the absence of medical documentation.
2. There is no medical evidence available that shows the FSM was wounded or treated for wounds as a result of hostile action during his service in Vietnam. Additionally, the FSM's name is not listed on the Vietnam casualty roster. Regrettably, in the absence of such evidence there is no basis for granting the applicants request to award the FSM the Purple Heart.
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) AR20100012322
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ABCMR Record of Proceedings (cont) AR20100012322
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