IN THE CASE OF:
BOARD DATE: 14 December 2010
DOCKET NUMBER: AR20100014889
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 a left knee shrapnel wound/injury he received in combat while serving in Vietnam.
2. The applicant states he earned a Purple Heart.
3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a Department of Veterans Affairs (VA) Rating Decision, dated 22 January 2010.
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 applicant was inducted into the Army of the United States on
26 September 1967. He completed training as a light weapons infantryman and he arrived in Vietnam on 10 March 1968.
3. He departed Vietnam en route to the United States on 4 March 1969. He was honorably released from active duty (REFRAD) on 18 August 1969 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining service obligation.
4. The applicant's records do not contain medical evidence showing he was wounded/injured as a result of hostile action while he was in Vietnam. Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) which was used to document combat wounds/injuries is blank. Additionally, his name is not shown on the Vietnam casualty listing.
5. The applicant submits a VA Rating Decision, dated 22 January 2010, showing he was granted service-connection for a left knee scar (claimed as shrapnel wound to his left knee) because, according to the VA, the evidence shows that condition is due to combat in Vietnam.
6. 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.
7. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions have been noted and the VA Rating Decision he submitted has been considered. However, they are not substantiated by the evidence of record.
2. The applicant's name is not listed on the Vietnam casualty listing, there are no wounds/injuries annotated in item 40 of his DA Form 20, and there is no medical documentation contained in his official military records that show he was wounded as a result of hostile action during his service in Vietnam.
3. The VA Rating Decision the applicant submitted is dated 22 January 2010, which is over 40 years after his REFRAD. The fact that the VA has granted him service-connection for his left knee scar is not a basis for awarding him the Purple Heart.
4. 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.
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