BOARD DATE: 24 February 2011
DOCKET NUMBER: AR20100021235
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 received shrapnel wounds while serving in Vietnam and did not receive the PH; and
b. he injured his right foot in combat action.
3. The applicant provides a Department of Veteran Affairs (VA) Rating Decision, dated 13 August 2008.
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 initially enlisted in the Regular Army on 12 June 1967 and he continuously served through reenlistments during the following periods:
* 12 June 1967 - 28 April 1968
* 29 April 1968 - 15 January 1970
* 16 January 1970 - 22 March 1971
* 23 March 1971 - 22 March 1977
3. His DA Form 2-1 (Personnel Qualification Record) includes an entry which shows he served in the Republic of Vietnam (RVN) from 20 July 1968 through
19 July 1969. The PH is not included among the list of awards shown in Item 9 (Awards, Decorations, and Campaigns).
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. The 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 or throughout his military service.
5. On 22 March 1977, the applicant was honorably discharged after completing a 9 years, 9 months, and 11 days of total active service. Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's last DD Form 214 shows the:
* National Defense Service Medal
* Vietnam Service Medal with one silver service star
* RVN Campaign Medal
* Army Good Conduct Medal (2nd Award)
* Driver and Mechanic Badge with Mechanic Bar
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Expert Marksmanship Qualification Badge with Machinegun Bar
6. During the processing of this case, a member of the Board staff reviewed the Vietnam casualty roster. There is no entry pertaining to the applicant on this list of RVN casualties.
7. The applicant provides a VA Rating Decision that shows he was granted a
20 percent (%) service-connected disability rating percentage for Residuals, Fracture, Right Fourth Toe that was incurred during the Vietnam era.
8. 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. By regulation, 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. In this case, the evidence of record fails to corroborate the applicant's claim of entitlement to the PH.
2. His name is not included on the Vietnam casualty roster, the official DA list of RVN battle casualties.
3. Absent any evidence of record to confirm the applicant sustained a combat-related wound 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.
4. The applicant and all others concerned should know that this action related to award of the PH in no way diminishes the sacrifices made by him 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) AR20100021235
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ABCMR Record of Proceedings (cont) AR20100021235
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