IN THE CASE OF:	  

		BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100016809 


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 award of the Purple Heart.

2.  The applicant states he received wounds from enemy direct fire while serving in Vietnam and he received his Purple Heart in the mail after he was separated from active duty.  He adds the Department of Veterans Affairs (VA) has given him a service-connected rating for his wounds; however, he is being denied full health care at the VA medical center because his DD Form 214 does not show that he was awarded the Purple Heart.

3.  The applicant provides a copy of his DD Form 214 and three VA documents.

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 was inducted and entered active duty in the U.S. Army for a period of 2 years on 4 March 1969.  Upon completion of training he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

	a.  item 31 (Foreign Service) he departed for overseas service in the U.S. Army Pacific (USARPAC) in the Republic of Vietnam on 9 December 1969;

	b.  item 40 (Wounds) is blank; and

	c.  item 41 (Awards and Decorations) does not show the Purple Heart.

4.  There are no orders or other evidence in the applicant's military personnel records that show he was awarded the Purple Heart.

5.  A Standard Form 88 (Report of Medical Examination), dated 13 November 1970, conducted for the purpose of the applicant's separation processing, shows in the Clinical Evaluation section the examining physician found the applicant's lungs and chest, abdomen and viscera, and lower extremities all were normal.  The physician did not enter any notes regarding wounds, scars or abnormalities. Item 72 (Notes) shows the applicant entered "(1) Since my last physical my condition hasn't changed; (2) My condition is Good; (3) Medical Records Reviewed," and the applicant placed his signature on the document.

6.  The applicant's DD Form 214 shows he was honorably released from active duty on 13 November 1970 and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his Reserve obligation.

   a.  At the time he had completed 1 year, 8 months, and 10 days of net active service this period.  It also shows he completed 11 months and 4 days of foreign service in USARPAC (Vietnam) from 9 December 1969 to 12 November 1970.

	b.  Item 24 does not show award of the Purple Heart.

7.  A review of the Vietnam casualty roster confirmed the applicant's name is not on the roster.

8.  A review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam-era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal orders pertaining to award of the Purple Heart to the applicant.

9.  In support of his application, the applicant provides the following documents.

   a.  VA Form 21-2507 (Request for Physical Examination), dated 9 December 1970, submitted by the applicant that shows in item 4 (Remarks - Include list of service-connected disabilities and in pension cases list chief complaints or disabilities), the entry "SFW RT KNEE & LT [Shell Fragment Wound, Right Knee and Left] RIB CAGE."

	b.  VA Form 07-3542c (Notice to Report), dated 14 December 1970, that shows the applicant was scheduled to report to the VA Outpatient Clinic, Fort Snelling, St. Paul, MN for examination on 30 December 1970.

   c.  VA Center, Fort Snelling, St. Paul, MN, letter, dated 23 March 1971, that shows the applicant was granted service-connection for two wounds (i.e., right chest and right knee), but they are rated less than 10% disabling.  It also shows the two wounds (i.e., right chest and right knee), along with the applicant's left hand injury and left rib cage wound were not incurred in nor aggravated by service.

10.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.  It states 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 medical personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show award of the Purple Heart because he received wounds from enemy direct fire while serving in Vietnam and he received his Purple Heart in the mail after he was separated from active duty.

2.  The applicant's claim was carefully considered.

   a.  There is no evidence in the available records that shows the applicant was wounded as a result of hostile action, that such wound required treatment by medical personnel, or that the medical treatment was made a matter of official record.

		(1)  The applicant's name is not listed on the Vietnam Casualty Roster.

		(2)  There are no orders or any other evidence that shows he was awarded the Purple Heart.

   b.  The applicant provides no evidence of his award of the Purple Heart
(i.e. award orders, award certificate, etc.)

   c.  The applicant provides copies of documents that show he was granted service-connection for two wounds (right chest and right knee) by the VA; however, the VA found the wounds were not incurred in nor aggravated by service.

   d.  Therefore, in view of all of the foregoing, there is insufficient evidence to support the applicant's claim to the Purple Heart.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ____X___  ____X___ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.


2.  The Board wants the applicant and all others concerned to know that 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.



      
      _______ _ 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)                                         AR20100016809



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ABCMR Record of Proceedings (cont)                                         AR20100016809



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