IN THE CASE OF:	  

		BOARD DATE:	  31 March 2011

		DOCKET NUMBER:  AR20100021278 


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.  his original records were lost and the PH is not included in his list of awards;

   b.  he was wounded in combat and feels he should receive a PH; and
   
   c.  the Department of Veterans Affairs (VA) acknowledges his entitlement to the PH.

3.  The applicant provides VA Informal Hearing Presentation proceedings.

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 initially inducted into the Army of the United States on 28 July 1970.  He was trained in and served in military occupational specialty 11B (Light Weapons Infantryman).

3.  His DA Form 20 (Enlisted Qualification Record) shows in item 35 (Record of Assignments) he was assigned for duty in the Republic of Vietnam (RVN) on 16 January 1971 and it includes the entry "HOSP" under the "Reason" heading.  It also shows he was reassigned in a "patient" status to the Medical Holding Company, William Beaumont General Hospital, El Paso, Texas on 7 February 1971.

4.  Item 40 (Wounds) of the DA Form 20 is blank and the PH is not included among the list of awards shown in Item 41 (Awards and Decorations).

5.  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 for the period in question.

6.  On 5 April 1972, the applicant was honorably discharged after completing a 1 year, 8 months, and 8 days of creditable active duty service.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued at that time list the following awards in item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized):

* National Defense Service Medal
* Vietnam Service Medal with one bronze service star
* Expert Marksmanship Qualification Badge with Rifle Bar

7.  On 19 September 1975, the applicant enlisted in the Nevada Army National Guard (NVARNG) and continued to serve until he was honorably retired on 7 September 1994, having completed 24 years, 1 month, and 10 days of creditable military service.  The NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) does not include the PH among its list of awards.


8.  The applicant's military record includes a Standard Form 93 (Report of Medical History) completed on 19 September 1975, completed during his enlistment process in the NVARNG.  

9.  The military record includes a Standard Form 93 prepared on 3 October 1992, which shows he was injured in the RVN in 1971.  It also shows he sustained shrapnel wounds to lower right leg, chest, back, and right arm.

10.  During the processing of this case, a member of the Board staff reviewed the Department of the Army Vietnam casualty roster.  There is no entry pertaining to the applicant in this list of RVN casualties.

11.  The applicant provides a VA informal hearing proceedings which indicate he received the PH during his military service from 28 July 1970 to 5 April 1972.  It also shows he was wounded as a result of enemy action in Vietnam in 1971.

12.  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.  The applicant contends he should be awarded the PH.  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 provide the facts and circumstances surrounding the injuries sustained by the applicant during his RVN service.

2.  The evidence of record shows that the applicant was hospitalized on the same date he was assigned to the RVN as evidenced by entry contained on his DA Form 20 dated 16 January 1971 and the Standard Form 93 dated 19 September 1975 on file.  In addition, item 40 of the DA Form 20 is blank which indicates he was not wounded in action and his name is not included on the Vietnam casualty roster, the official DA list of RVN battle casualties.


3.  The VA Informal Hearing Presentation proceedings provides indication the applicant was awarded the PH for wounds received as a result of enemy action. However, the medical evidence of record from which this information was derived was not provided by the applicant to substantiate this claim.  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)                                         AR20100021278





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ABCMR Record of Proceedings (cont)                                         AR20100021278



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