IN THE CASE OF:	  

		BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100015550 


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 his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show three awards of the Purple Heart.

2.  The applicant states, in effect, that his DD Form 214 only shows one award of the Purple Heart when he actually has three certificates for Purple Hearts.  

3.  The applicant submits copies of three Purple Heart orders and certificates in support of his application.

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 records show he was inducted into the Army of the United States on 21 September 1967.

3.  Item 31 (Foreign Service) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 
8 March 1968 to 7 March 1969.  Item 38 (Record of Assignments) shows that during his tour of duty in the Republic of Vietnam he was assigned to 3rd Battalion, 47th Infantry Regiment, 9th Infantry Division.

4.  Item 40 (Wounds) of his DA Form 20 contains the following entries:

* 15 May 1968 – multiple fragment wounds to both legs
* 26 May 1968 – gunshot wound to left knee

5.  The applicant's name is listed twice on the Vietnam Casualty Roster under casualty status 23, which refers to "hostile wounded in action - not serious - hospitalized" on 15 and 26 May 1968.

6.  Item 41 (Awards and Decorations) of his DA Form 20 lists the following Purple Hearts:

* Purple Heart (1st award), General Orders Number 3517, 9th Infantry Division, 16 May 1968
* Purple Heart, General Orders Number 152, 9th Infantry Division

7.  General Orders Number 3517, published by Headquarters, 9th Infantry Division, dated 16 May 1968, awarded the applicant the Purple Heart for wounds received in connection with military operations against a hostile force in the RVN on 15 May 1968.

8.  General Orders Number 152, published by Headquarters, 9th Evacuation Hospital, dated 28 May 1968, awarded the applicant the Purple Heart for wounds received in connection with military operations against a hostile force in the RVN on 25 May 1968.

9.  General Orders Number 3900, published by Headquarters, 9th Infantry Division, dated 29 May 1968, awarded the applicant the Purple Heart for wounds received in connection with military operations against a hostile force in the RVN on 26 May 1968.

10.  The applicant submitted copies of the following Purple Heart certificates:

* 16 May 1968 for wounds received on 15 May 1968
* 28 May 1968 for wounds received on 25 May 1968
* 29 May 1968 for wounds received on 26 May 1968

11.  On 19 September 1969, the applicant was released from active duty.  He completed 1 year, 11 months, and 29 days net active service.  Item  24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded the National Defense Service Medal, RVN Campaign Medal, Purple Heart (2nd award), VSM, Combat Infantryman Badge, Army Commendation Medal, Expert Marksmanship Qualification Badge (Rifle M-16), Sharpshooter Marksmanship Qualification Badge (Rifle M-14), and Expert Marksmanship Qualification Badge (Machinegun).  

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a direct 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 military personnel, and the medical treatment must have been made a matter of official record.  Not more than one award will be made for more than one wound or injury received at the same instant or from the same missile, force explosion, or agent.

13.  Paragraph 1-18 of Army Regulation 600-8-22 states that only one decoration will be awarded to an individual for the same act, achievement, or period of meritorious service.

14.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards) provided, in pertinent part, for award of the Purple Heart.  The regulation stated that authority to award the Purple Heart was delegated to hospital commanders.  Further, it directed that all personnel treated and released within 24 hours would be awarded the Purple Heart by the organization to which the individual is assigned.  Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam would be awarded the Purple Heart directly by the hospital commander rendering treatment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's name is listed twice on the RVN Casualty Roster for wounds received on 15 and 26 May 1968 while serving in the RVN.  Item 40 of his DA 

Form 20 also shows he was wounded on those two dates.  There is no evidence in the available records and the applicant has failed to provide any evidence showing he was wounded a third time during a different incident or that his additional wound was treated by medical personnel and made a matter of official record.

2.  Although the applicant submitted three sets of orders and certificates showing award of the Purple Heart, evidence indicates General Orders Number 152, issued by the 93d Evacuation Hospital on 28 May 1968 and General Orders Number 3900 issued by the 9th Infantry Division on 29 May 1968 were for the same incident.  One was completed by the applicant's command and one by the hospital that treated his wounds and that apparently accounts for the duplication of the orders.  There is no evidence in the applicant's record nor did the applicant submit any evidence to show he was wounded on three separate occasions while assigned to the RVN.  Therefore, he is not entitled to have his record corrected to show a third award of the Purple Heart. 

3.  In the absence of evidence that the applicant was wounded or injured as a result of hostile action during another incident, and that his wound was treated by medical personnel and made a matter of official record, there is insufficient evidence upon which to base award of a third Purple Heart in this case.  This action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20100015550



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1