IN THE CASE OF:	  

		BOARD DATE:	  22 February 2011

		DOCKET NUMBER:  AR20100021147 


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 never received the Purple Heart for the injuries he sustained while serving in the Republic of Vietnam (RVN).  He states he was injured while serving with the 1st Calvary Division (Air Mobile) when a bomb hit a tree and shrapnel fell and hit him on the head.  He was also burned on both of his arms, head, and back when enemy forces lit a fire around the perimeter of his position.  He was hospitalized in Vietnam 3 months while recovering from the burns.  He believes he should have been awarded the Purple Heart for his combat injuries. 

3.  The applicant provides a medical progress note, dated 2 December 2005, in support of his application. 

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 was inducted into the Army of the United States on 11 August 1969.  He completed his initial entry training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant served in the RVN from 6 January to 30 November 1970 with Company B, 5th Battalion, 12th Infantry, 199th Infantry Brigade.

4.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) does not show he was a patient in a hospital in the RVN.  His record does not show any periods of hospitalization. 

5.  Item 40 (Wounds) of his DA Form 20 does not show an entry for wounds received in hostile action.

6.  Item 41 (Awards and Decorations) of his DA Form 20 shows he received the following awards:  

* Vietnam Service Medal 
* National Defense Service Medal
* Army Commendation Medal
* Bronze Star Medal with "V" Device
* RVN Campaign Medal with Device (1960)
* Overseas Service Bar (1)
* Good Conduct Medal (1st Award)
* Marksman Marksmanship Qualification Badge with Rifle Bar

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

8.  The applicant was honorably released from active duty on 10 August 1971 and transferred to the U.S. Army Reserve Control Group (Annual Training).  He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows in item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) the following awards:

* National Defense Service Medal
* Army Commendation Medal
* Bronze Star Medal
* Overseas Service Bar (1)
* Vietnam Service Medal with two bronze service stars
* RVN Campaign Medal with Device (1960)
* Marksman Marksmanship Qualification Badge with Rifle Bar
* Good Conduct Medal (1st Award)

9.  The applicant's name is not listed on the Vietnam casualty roster as being injured during combat operations and his military medical records are not available for the Board's review.

10.  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.

11.  In support of his application, the applicant provided a medical progress note showing he received psychotherapy at the Augusta Veterans Affairs Medical Center.  The medical note also stated the applicant was "SHOT IN THE ARM AND LEG AFTER VIETNAM IN THE USA (during a) STREET SITUATION."

12.  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 RVN.  However, his record is devoid of documentary evidence to support his contention.  His name does not appear on the Vietnam Casualty Roster as being wounded in action nor does his record show he was hospitalized for 3 months in the RVN based on his assignment history recorded on the DA Form 20.  Therefore, in the absence of military and medical records showing 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.  The applicant has failed to submit evidence, specifically documented medical evidence from military medical records to show he was medically treated.

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 heroic and selfless 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)                                         AR20100021147



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ABCMR Record of Proceedings (cont)                                         AR20100021147



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