IN THE CASE OF:
BOARD DATE: 15 February 2011
DOCKET NUMBER: AR20100020029
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 for an injury received while serving in the Republic of Vietnam (RVN).
2. The applicant states he was injured during combat when "the guns on our duster exploded." He still has shrapnel in his left arm from that explosion. He never knew he qualified for the Purple Heart. Award of the Purple Heart is important to him and his family
3. The applicant provides copies of his DD Form 214, personal letters he wrote while in the RVN, and radiology reports showing two pieces of shrapnel in his left arm.
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 applicants 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 applicants 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 records show the following:
Event
Dates
Inducted into the Army of the United States
20 March 1968
Assigned as an artillery mechanic, gunner, prime mover driver, and squad leader with Battery A, 1st Battalion, 44th Artillery Regiment, RVN
24 October 1968 to
18 October 1969
Returned to the United States
On or about 18 October 1969
Released from active duty
21 October 1969
3. Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the:
* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) Bar
* Expert Marksmanship Qualification Badge with Rifle (M-16) Bar
* Vietnam Campaign Medal
* Vietnam Service Medal
* Army Good Conduct Medal
* Bronze Star Medal
* 2 overseas service bars
4. The applicant's DA Form 20 (Enlisted Qualification Record) shows in:
a. Item 40 (wounds) no entry; and
b. Item 41 (Awards and Decorations) no entry for award of the Purple Heart.
5. The Vietnam casualty roster does not list the applicant's name.
6. Army Regulation 600-8-22 provides for award of the Purple Heart to a member of the Armed Force of the United States who, while serving in any capacity with one of the U.S. Armed Services has been wounded or killed, or
who has died or may die after being wounded in any action against an enemy of the U.S. 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.
7. In a letter to his brother John, provided by the applicant, dated 16 January 1969, he states that at about four in the morning on 14 January, he and two others were firing their guns when they blew up. He states that "hardly nothing happened to us." The tracks and guns were a total loss.
8. In a letter to his brother Joe, provided by the applicant, dated 16 January 1969, he states that "the guns blew up on us while we were firing
that was a bummer, our track is a total combat loss. Only three of us were shooting and no one got hurt, the only thing was our ears, just hearing too loud of a noise, you know what I mean, and my hair burn a little on the tip and my eyelid, eyelashes, and mustache, it was funny though, but I hate to go through it again."
9. A radiology report, provided by the applicant, dated 2 July 2010, states that he had a 4 millimeter metallic foreign body in his left forearm and a 3 millimeter metallic foreign body in his left upper arm. The report indicated that these abnormalities needed attention. The report is silent as to the source of these foreign bodies.
DISCUSSION AND CONCLUSIONS:
1. The applicant's name is not listed on the Vietnam casualty roster. Furthermore, there is no available evidence of record showing that he was injured or wounded while engaged in combat against an armed enemy.
2. In two letters to his brothers the applicant stated that while he and two other Soldiers were firing their guns they blew up; however, hardly nothing happened to them and no one got hurt, indicating no medical treatment was required.
3. The evidence provided by the applicant clearly shows that he has metallic objects in his left arm, but does not indicate that they are the result of enemy action. Furthermore, there is no evidence showing that he received medical treatment for any such injuries while in the RVN.
4. In view of the above, the applicant's request should be denied.
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) AR20100020029
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100020029
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