IN THE CASE OF:	  

		BOARD DATE:	  27 January 2011

		DOCKET NUMBER:  AR20100019983 


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 he should have been awarded the PH for burns to his stomach area he received in the Republic of Vietnam (RVN). 

3.  The applicant provides a self-authored statement; photographs; third-party statements; and DD Forms 214 (Report of Transfer or Discharge/Report of Separation from Active Duty), dated 16 June 1971 and 29 August 1975, respectively.

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 enlisted in the Regular Army (RA) on
17 June 1969.  He was awarded military occupational specialty (MOS) 11B (light weapons infantryman).  He was honorably released from active duty on 16 June 1971 at the expiration of his term of service (ETS).  On 31 August 1972 he again enlisted in the RA and he was awarded MOS 62F (crane operator).  He was honorably discharged on 29 August 1975 at the completion of required active service.  He completed 4 years, 11 months, and 29 days of total active service.  The highest rank/grade he attained during his service was specialist five (SP5)/
E-5.

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 18 November 1969 through 2 November 1970.  Item 40 (Wounds) is blank and the PH is not included in the list of awards contained in item 41 (Awards and Decorations) of the DA Form 20.  

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 for the period ending 16 June 1971 and item 26 (same title) of his DD Form 214 for the period ending 29 August 1975 do not show award of the PH.

5.  The applicant’s DA Form 201 (Military Personnel Records Jacket (MPRJ)) is void of any orders or other documents indicating the applicant was ever recommended for or awarded the PH by proper authority while serving on active duty.  It is also void of any medical treatment records indicating he was ever treated for a wound he received as a result of enemy action.

6.  The applicant provides two third-party statements from individuals who served with him in the RVN.  These individuals confirm the applicant received burns while pulling another Soldier out of a fire at a fire support base.  The statements indicate the fire was caused by a fuel spill .  Neither statement indicates the wound was received as a result of or caused by enemy action.   

7.  During the processing of this case, a member of the Board's staff reviewed the Department of the Army (DA) Vietnam casualty roster.  No entry showing the applicant was wounded in action is contained on this roster.  

8.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-8 contains guidance on award of the PH.  It states 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 it required treatment by military medical personnel; and a record of this medical treatment must have been made a matter of official record.  

9.  Paragraph 2-8h of the awards regulation contains examples of wounds or injuries that clearly do not justify award of the PH.  Included in these examples are accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention he should be awarded the PH for burns he received while serving in the RVN has been carefully considered.  However, by regulation, in order to support award of the PH there must be evidence the wound for which the award is being made was received as a result of enemy action; that it required treatment by military medical personnel; and a record of this medical treatment must have been made a matter of official record.  

2.  The evidence of record fails to show the applicant was ever recommended for or awarded the PH by proper authority while serving on active duty.  Further, item 40 of his DA Form 20 is blank, indicating he was never wounded in action; and the PH is not included in the awards contained in item 41.  Finally, his name is not listed on the Vietnam casualty roster, the official DA list of RVN battle casualties.   

3.  The third-party statements provided, while confirming the applicant received burns while pulling another Soldier out of a fire, do not indicate the wounds were received or caused by enemy action.  In fact, they indicate the fire was the result of an accidental fuel spill.  

4.  Further, the applicant's record is void of any documents or entries indicating the burns he received were the direct result of or caused by enemy action, or that he was ever treated for a combat-related wound by military medical personnel while serving in the RVN.  

5.  Absent any evidence the applicant was ever wounded as a result of enemy action, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Therefore, it would not be appropriate or in the interest of all those who served in the RVN and who faced similar circumstances to support award of the PH in this case.  

6.  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.

7.  The applicant and all others concerned should know this action related to award of the PH 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.  

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)                                         AR20100019983



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ABCMR Record of Proceedings (cont)                                         AR20100019983



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