BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100016787 


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, in effect, award of the Purple Heart and its addition to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  He states he was wounded in Vietnam and there is no indication that a Purple Heart was awarded.  He discovered the error upon applying for Department of Veterans Affairs (VA) medical benefits.

3.  He provides:

* military service records
* DA Form 20 (Enlisted Qualification Record)
* Army Commendation Medal and Air Medal orders and certificates
* DD Form 214
* U.S. Army Reserve (USAR) discharge orders
* request to a Member of Congress and response
* VA response

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel provides no request, statement, or additional evidence.

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 military records show he was inducted into the Army of the United States in pay grade E-1 on 3 June 1969 for 2 years.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He served in Vietnam from 9 November 1969 through 19 October 1970.

3.  His DA Form 20 (Enlisted Qualification Record), Item 38 (Record of Assignment), shows he was in a patient status from 13 to 21 October 1970.  His records do not show or specify the reason for his patient status.

4.  He was honorably released from active duty in pay grade E-5 on 26 January 1971 under the early release program and he was transferred to the USAR Control Group (Annual Training).

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 lists the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Army Commendation Medal, Air Medal, one overseas service bar, Combat Infantryman Badge, Army Commendation Medal with 1st Oak Leaf Cluster, and Marksman Marksmanship Qualification Badge with Rifle Bar (M-14).

6.  There is no evidence in his military records showing he was wounded in action during his period of service.  There are no orders in his military personnel records authorizing award of the Purple Heart.  There is no entry in item 40 (Wounds) of his DA Form 20 showing he was wounded as a result of hostile enemy action.  Item 41 (Awards and Decorations) of his DA Form 20 does not list the Purple Heart.

7.  The Vietnam casualty list was reviewed to determine if he had been wounded in action while he served in Vietnam.  His name is not shown on this list.


8.  A review of the Awards and Decorations Computer Assisted Retrieval System which includes the records of his unit for the time frame he served in Vietnam was conducted.  This review failed to show any orders were published authorizing him award of the Purple Heart.

9.  Army Regulation 600-8-22 (Military Awards), then in effect, stated the Purple Heart was awarded for an injury or 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 military personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of entitlement to the Purple Heart and the supporting evidence provided were carefully considered.  However, by regulation, in order to support award of the Purple Heart, there must be evidence confirming the injury or wound for which the award is being made was caused by or was a direct result of enemy action, that the wound was treated by medical personnel, and that a record of this treatment must have been made a matter of official record.

2.  He provided insufficient evidence to show he was wounded or injured as a result of hostile action while serving in Vietnam.  The evidence of record contains no orders or other documents showing he was wounded or injured as a result of hostile action while serving in Vietnam or authorizing award of the Purple Heart.  His name does not appear on the Vietnam casualty list.

3.  Therefore, absent corroborating evidence confirming his contentions (chain of command supporting letters, etc.), the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.

4.  In view of the foregoing, there is no basis for granting 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 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)                                         AR20100016787



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ABCMR Record of Proceedings (cont)                                         AR20100016787


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