IN THE CASE OF:	  

		BOARD DATE:	    25 January 2011

		DOCKET NUMBER:  AR20100014362 


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 the unit executive officer (XO) recommended him for the award of the Purple Heart but it was not followed up because the XO was transferred.

3.  The applicant provides copies of his DD Form 214 (Report of Transfer or Discharge) and a 1986 Board of Veterans Appeals (BVA) decisional document. 

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 service medical and dental records are on permanent loan to the Department of Veterans Affairs (VA) and are not available for review.  Attempts by the applicant to obtain copies of his service medical records have met with no response from VA.

3.  The applicant enlisted in the Regular Army on 23 December 1968, completed training, and was awarded the military occupational specialty 11B (Light Weapons Infantryman).

4.  He served in Vietnam with Company D, 1st Battalion, 12th Infantry Regiment from 1 June 1969 through 10 March 1970.

5.  On 11 March 1970, the applicant was medically evacuated to the U. S. Army Hospital at Camp Zama, Japan as a patient.  He was then transferred to the Valley Forge General Hospital in Pennsylvania as a patient.

6.  The applicant was honorably released from active duty on 6 August 1970 with 1 year, 7 months, and 14 days of creditable service and no time lost.  His DD Form 214 shows award of the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), two Overseas Service Bars, Expert Marksmanship Qualification Badge with Rifle Bar (M-14), and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16). 

7.  His DA Form 20 (Enlisted Qualification Record) shows at item 40 (Wounds), a broken ankle on 7 March 1970.

8.  On 8 September 1986, the BVA awarded the applicant an increase for his service connected fracture of the left talus bone (the bone in the foot that forms the lower part of the ankle joint), and residuals of a fragment wound to the left leg.  In the decisional document, the BVA states that the applicant's service medical records show that, in January 1970, he received medical treatment for a fragment wound to his left leg.  His service medical records also show that in March 1970 he fractured his left ankle when jumping out of a helicopter.

9.  A review of the Vietnam Casualty List failed to locate any reference to the applicant.

10.  A 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 included orders for award of an Air Medal and the Army Commendation Medal but not the Purple Heart.

11.  Army Regulation 600-8-22 (Military Awards) states that 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 applicant states the unit XO recommended him for the award of the Purple Heart but it was not followed up because the XO was transferred.

2.  The applicant gives no details of how he received the injuries for which his XO was to recommend him for the Purple Heart.  

3.  The BVA decisional document the applicant provided indicates he had two possible injuries that might have qualified -- a fragment wound to the left leg for which he received medical treatment in January 1970 and a fractured left ankle he received when jumping out of a helicopter in March 1970.  However, the document does not indicate that his service medical records explained the circumstances in which he received either injury.  

4.  Notwithstanding the one entry on his DA Form 20, without the actual service medical records to review to determine if either of the wounds/injuries was in fact sustained as a result of hostile action, there is insufficient evidence to verify his entitlement to award of the Purple Heart for either injury.  

5.  If the applicant is able to obtain copies of his service medical records that clearly show his wounds where incurred as a result of hostile actions, he should resubmit an application to this Board, including that evidence.

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)                                         AR20100014362





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ABCMR Record of Proceedings (cont)                                         AR20100014362



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