IN THE CASE OF:
BOARD DATE: 3 February 2011
DOCKET NUMBER: AR20100018924
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, to be awarded the Purple Heart (PH) and correction of his 1975 DD Form 214 (Report of Separation from Active Duty) to add this award.
2. He states he served in the Republic of Vietnam from February 1967 to February 1968 and should be awarded the PH based on medical evidence.
3. He provided copies of:
* a DD Form 214 for the period ending 26 February 1975
* a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 October 1984
* a Department of Veterans Affairs Medical Center (VAMC)-Oklahoma City Consent for Treatment/Procedure, dated 4 May 2010
* medical laboratory results, printed on 1 June 2010, from the VAMC
* medical progress notes, printed on 1 June 2010, from the VAMC
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. After having had prior service, he enlisted in the Regular Army on 2 May 1963 and subsequently served on active duty through a series of reenlistments.
3. His DA Form 20 (Enlisted Qualification Record):
* item 31 (Foreign Service), shows he served in Vietnam from 14 February 1967 through 7 February 1968
* item 40 (Wounds), is blank
* item 41 (Awards and Decorations), does not show award of the PH
4. His DD Form 214 for the period ending 26 February 1975 shows he was honorably discharged for the purpose of reenlistment. Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not show award of the PH; however, it does indicate he was awarded the Army Commendation Medal (ARCOM) with "V" Device (issued by the 2d Infantry Division during a period of time he was assigned to Korea).
5. His name does not appear on the Vietnam casualty roster and his medical records are not available for review.
6. 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 any orders for the PH pertaining to the applicant.
7. He submitted copies of three documents from the VAMC in Oklahoma City, OK. These documents show he gave his consent for the VAMC to perform a procedure to remove metal fragments from the right side of his mouth on 4 May 2010. The lab results show the single metal fragment in his mouth was compatible with shrapnel. The fibrous tissue showed signs of reaction to iron-containing mineral deposits and severe hemosiderosis.
8. The medical progress notes stated he wanted the old piece of shrapnel taken out of his mouth as proof of a war injury for award of the PH.
9. Army Regulation 600-8-22 (Military Awards) states 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 evidence he provided from the VAMC-Oklahoma City showed he had shrapnel removed from his mouth in May 2010. However, absent evidence to show his wounds were a result of hostile action, he required medical treatment at the time, and that medical treatment was made a matter of record, there is insufficient evidence to award him the PH.
2. In view of the foregoing, there is no basis to grant the 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 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) AR20100018924
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ABCMR Record of Proceedings (cont) AR20100018924
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