IN THE CASE OF:	  

		BOARD DATE:	  10 February 2011

		DOCKET NUMBER:  AR20100018236 


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 two applications, award of the Purple Heart (PH) and Combat Infantryman Badge (CIB). 

2.  The applicant states he was emptying the spent shell cases from a helicopter and re-arming it with fresh ammunition when they came under mortar fire.  Two fuel tanks exploded and he took shrapnel to his hand for which he received 30 to 50 stitches.

3.  Additionally, the applicant states he has had back pain and pain in his right ear and eye since he was discharged.  He has now been diagnosed with Post-Traumatic Stress Disorder and fibromyalgia and he is unable to work.

4.  The applicant provides:

	a.  a letter from the Human Resources Command (HRC), dated 19 January 2010; and

	b.  a letter from the Director of the U.S. Army & Joint Services Records Research Center, dated 17 June 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 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 that he enlisted in the Regular Army on 19 May 1970.  At that time he was identified by his Social Security Number (SSN) since Military Service Numbers (MSNs) were no longer used after 1 July 1969.  He was awarded the military occupational specialty (MOS) 67N (UH-1 Helicopter Repairman).  He served in Vietnam from 17 August 1971 to 31 March 1972, and he was promoted to Specialist Four, pay grade E-4, on 26 April 1971.  This was the highest grade that he held.

3.  He was honorably released from active duty on 4 April 1972.

4.  The Vietnam Casualty List shows an individual with the applicant's name was wounded on 17 May 1971.  However, the Soldier so identified was serving in pay grade E-5 and he was identified with an MSN.

5.  The applicant provided a letter from HRC, dated 19 January 2010, which informed his elected representative that the applicant's name was not on the Vietnam Casualty List.  As such, without evidence that the applicant was injured as a direct result of enemy action and that his injuries were made a matter of official record, an award of the PH could not be authorized.

6.  The applicant provided a letter from the Director of the U.S. Army & Joint Services Records Research Center, dated 17 June 2010, which stated that the U.S. Army Casualty Data information available to them shows the applicant, a Specialist 5th Class, was wounded in action on 17 May 1971 as the result of an aircraft incident on 17 May 1971.

7.  Army Regulation 600-8-22 (Military Awards) provides that the PH is awarded for wounds 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 a medical officer, and the medical treatment must have been made a matter of official record.

8.  Army Regulation 600-8-22 provides, in pertinent part, that the CIB is awarded to infantry officers and to enlisted and warrant officer persons who have an infantry MOS.  They must have served in active ground combat while assigned or attached to an infantry unit of brigade, regimental or smaller size.  Additionally, Appendix V of USARV 672-1 provides that during the Vietnam era the Combat Infantryman Badge was awarded only to enlisted individuals who held and served in MOS 11B, 11C, 11D, 11F, 11G, or 11H.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was a helicopter repairman.  As such, he did not meet the criteria for award of the CIB.

2.  As for the PH, there is conflicting information concerning whether the applicant was wounded in Vietnam.  HRC stated he was not on the Vietnam Casualty List, but the U.S. Army & Joint Services Records Research Center stated that the U.S. Army Casualty Data information available to them showed the applicant, a specialist 5th Class, was wounded in action on 17 May 1971 as a result of an aircraft incident.

3.  Since the rank and date cited by the U.S. Army & Joint Services Records Research Center is the same as that found on the Vietnam Casualty List, it is presumed that was the document that was used in confirming that the applicant was wounded.

4.  Although the name on the Vietnam Casualty List is the same as the applicant's name, the rank was higher than the applicant's rank, the individual was identified by an MSN (which the applicant did not have), and the date of wounding was prior to the applicant's arrival in Vietnam.  The wound was listed as 17 May 1971 and the applicant arrived in Vietnam on 17 August 1971.  Therefore, the Soldier identified on the Vietnam Casualty List is not the applicant.

5.  Without evidence that the applicant was wounded as a result of hostile action, there is insufficient evidence in which to award him the PH.

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)                                         AR20100018236



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ABCMR Record of Proceedings (cont)                                         AR20100018236



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