IN THE CASE OF:	  

		BOARD DATE:	  10 February 2011

		DOCKET NUMBER:  AR20100020198 


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.

2.  The applicant states he received shrapnel wounds while serving in the Republic of Vietnam.

3.  The applicant provides the following documents in support of his application:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DA Form 3349 (Medical Condition – Physical Profile Record)
* DA Form 2658 (Health Record – Abstract of Service)
* DA Form 20 (Enlisted Qualification Record)
* multiple documents from his military health care records

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 enlisted in the Regular Army on 26 May 1969 for a 2-year period.  He completed his initial entry training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant served in the Republic of Vietnam from 16 November 1969 to 15 November 1970 with Company B, 1st Battalion, 52nd Infantry, 198th Infantry Brigade.

4.  Item 40 (Wounds) of the applicant's DA Form 20 does not show an entry for wounds received in hostile action.

5.  The applicant's service personnel records do not contain general orders awarding him the Purple Heart.

6.  The applicant was honorably released from active duty on 25 May 1971 and transferred to the U.S. Army Reserve Control Group (Annual Training).  

7.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he has these awards:

* National Defense Service Medal
* Vietnam Service Medal with two bronze service stars
* Combat Infantryman Badge
* Republic of Vietnam Campaign Medal with Device (1960)
* Army Good Conduct Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar

8.  The applicant's name is not listed on the Vietnam casualty roster as being injured during combat operations.  His military medical records are devoid of documentation showing he was wounded and that he received medical treatment for wounds incurred during combat operations.

9.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), 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 awarding him the Purple Heart.

10.  In support of his application, the applicant provided excerpts from his health records that are devoid of evidence showing he was wounded in action and that he received medical treatment for his wounds.  He did provide a physical profile record that shows on 17 December 1970 he received a temporary physical profile of three for his lower extremities.  This profile shows his medical deficiency was for a moderate varicocele.  This profile stated he was medically qualified for duty with temporary limitations. 

11.  Army Regulation 672-5-1 (Military Awards), then in effect, provided that the Purple Heart is awarded to any member of an Armed Force or any civilian national of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services has been wounded, killed, or who has died as a result of 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 a medical officer, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1. The applicant contends he was wounded while serving in the Republic of Vietnam.  However, his record is devoid of documentary evidence to support his contention.  In addition, the applicant's name does not appear on the Vietnam Casualty Roster as being wounded in action.  Therefore, in the absence of military and medical records showing that the applicant was wounded and treated for wounds resulting from hostile action, there is insufficient evidence upon which to base award of the Purple Heart.

2.  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 medical evidence of shrapnel wounds received while directly engaged with enemy forces.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ___X____  ____X___  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action 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.  




      _______ _ 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)                                         AR20100020198





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ABCMR Record of Proceedings (cont)                                         AR20100020198



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