IN THE CASE OF:
BOARD DATE: 27 January 2011
DOCKET NUMBER: AR20100019780
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 award of the Purple Heart (PH).
2. The applicant states:
a. he sustained an injury to his left eye from small enemy fire while serving in
the Republic of Vietnam (RVN);
b. he received medical treatment at "Quinn" Hospital when his left eye was flushed and fragments were removed;
c. he was told he would be awarded the PH; however, it was never presented to him; and
d. the PH was not documented on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
3. The applicant provides:
* Department of Veterans Affairs Form 21-4138 (Statement in Support of Claim)
* letter, dated 29 May 2009
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 record shows he was inducted into the Army of the United States on 24 April 1969. He was trained in and awarded military occupational specialty 11B (Light Weapons Infantryman). Sergeant is the highest rank he attained while serving on active duty.
3. The applicant's DA Form 20 (Enlisted Qualification Record) includes an entry in item 31 (Foreign Service) which shows he served in the RVN from 28 September 1969 to 26 September 1970. Item 40 (Wounds) is blank and the PH is not included in the list of awards contained in item 41 (Awards and Decorations).
4. The applicant's record is void of any orders or other documents that indicate he was ever awarded the PH by proper authority while serving on active duty. His record does not include any medical treatment records that indicate he was ever treated for a combat-related wound or injury while serving in the RVN.
5. On 23 April 1971, the applicant was honorably released from active duty. The DD Form 214 issued upon the applicant's release shows he completed 2 years of active military service.
6. Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the applicant earned the following awards:
* National Defense Service Medal
* Combat Infantryman Badge
*
Army Good Conduct Medal
* Vietnam Service Medal with two bronze service stars
* two overseas service bars
* RVN Campaign Medal with Device (1960)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14)
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
7. The applicant provides a letter from a physician, dated 29 May 2009. The physician indicates she examined the applicant and agreed that there was evidence of prior ocular trauma to the oculus sinister [left eye].
8. During the processing of this case, a member of the Board's staff reviewed the Department of the Army (DA) Vietnam casualty roster. The applicant's name is not included on this casualty list.
9. Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy. Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH. It states that in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that the wound required treatment by medical personnel, and a record of this medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he should be awarded the PH for wounds he sustained to his left eye by small enemy fire while serving in the RVN.
2. Item 40 of the applicant's DA Form 20 is blank which indicates he was not wounded in action. Further, the applicant's name is not included on the Vietnam casualty roster, the official DA list of RVN battle casualties. Absent any evidence to corroborate that he was wounded as a result of enemy action and that he was treated for a combat-related wound by military medical personnel while serving in the RVN, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.
3. Although the physician's statement, dated 29 May 2009, indicates evidence of ocular trauma to the oculus sinister, it does not provide any evidence to confirm the circumstances surrounding the incident that led to or caused the trauma.
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) AR20100019780
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100019780
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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