IN THE CASE OF:	  

		BOARD DATE:	  3 March 2011

		DOCKET NUMBER:  AR20100022327 


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 he would appreciate being awarded the PH that should have been awarded by his command in the Republic of Vietnam (RVN).  He claims he is near death now and would like to make his military record reflect this honor.  He claims the injury was noted several times but no PH was awarded.  He states aid was initially rendered by a field medical corpsman (MEDIC) and it was wrapped at the 17th Field Hospital during his out-processing.  He further indicates it was noted by his doctor and at the Department of Veterans Affairs (VA) where it was placed in his record.   

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

* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 April 1983
* Self-Authored Narrative of Injury
* Standard Form (SF) 93 (Report of Medical History), dated                  21 November 1981
* VA Rating Decision, dated 24 May 2004
* Defense Finance and Accounting Service (DFAS) letter, dated 
13 January 2009
* VA Medical Claim, dated 31 August 2005 
* Cardiovascular Consultants letter, dated 7 November 2009
* Martins Point Health Clinic letter, dated 29 June 2010

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’s record shows he initially was inducted into the Army on        24 November 1961, and continuously served through reenlistments until being honorably discharged on 3 February 1970.  DD Forms 214 (Armed Forces of   the United States Reports of Transfer or Discharge) issued to the applicant on  28 August 1962, 3 February 1964, and 3 February 1970 do not include the PH in the earned awards listed.  

3.  The record further shows after a break in service, the applicant again enlisted in the Regular Army on 22 June 1971, and continuously served through reenlistments until being honorably retired, in the rank of sergeant first class/E-7 (SFC/E-7), on 30 April 1983.  

4.  The applicant's DA Form 20 (Enlisted Qualification Record), covering his active duty service through 28 November 1973, shows he served in the RVN from 15 October 1967 through 1 November 1968.  Item 40 (Wounds) is blank and the PH is not included in the list of earned awards entered in item 41 (Awards and Decorations).  The applicant last audited this record on 28 November 1973.

5.  The DA Form 2-1 (Personnel Qualification Record) prepared on the applicant on 25 June 1974 is void of any entries indicating he was ever wounded as a result of enemy action.  Item 9 (Awards, Decorations and Campaigns) does not include the PH in the earned awards listed.  Item 33 (Review Date) shows he last reviewed this record on 1 July 1982.  

6.  The applicant’s Official Military Personnel File (OMPF) is void of any orders or other documents that show he was ever recommended for or awarded the PH by proper authority while serving on active duty.  
7.  The OMPF is also void of any medical treatment records confirming he was treated for a wound received as a result of enemy action.  It does include an     SF 93 prepared by the applicant on 21 November 1981, in which he notes booby trap wounds in 1967.  The examining physician did not annotate a record of treatment for these wounds and there are no annotations regarding the circumstances surrounding receipt of the booby trap wounds noted.  

8.  On 30 April 1984, the applicant was honorably retired.  The DD Form 214 he was issued at that time does not include the PH in the list of awards contained in item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized).  

9.  The applicant provides a VA rating decision that awarded service connection for scars related to a pungee stick wound.  It indicated this service connection was based on the record showing a wound related to a booby trap.  It fails to identify circumstances surrounding the wounding or information related to medical treatment for the wounds.  He also provides self-authored statements and medical treatment records that indicate he is suffering from heart and pulmonary conditions.  

10.  During the processing of this case, a member of the Board staff reviewed the Department of the Army (DA) Vietnam Casualty Roster.  There was no entry on this roster pertaining to the applicant.  The Awards and Decorations Computer Assisted Retrieval System (ADCARS), a web based index containing general orders issued between 1965 and 1973 for the Vietnam era, was also reviewed; however, this search failed to produce PH or any other award orders pertaining to the applicant.  

11.  Army Regulation 600-8-22 (Military Awards) contains the Army’s awards policy.  Paragraph 2-8 contains guidance on award of the PH.  It states 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 it required treatment by military medical personnel; and a record of this treatment must have been made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be awarded the PH for wounds received as a result of a booby trap has been carefully considered.  However, 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 it required treatment by military medical personnel; and a record of the medical treatment must have been made a matter of official record.  
2.  In this case, there is only one document in the record indicating the applicant received wounds due to a booby trap.  This document was an SF 93 that contained a self-authored notation regarding the booby trap wounds.  It failed to provide confirmation of the circumstances surrounding the booby trap wounds.  There are no medical treatment records on file that confirm the applicant required treatment by military medical personnel for a wound received as a result of enemy action.  

3.  Further, item 40 of the applicant's DA Form 20 is blank which indicates he was never wounded as a result of enemy action, and both his DA Form 20 and DA Form 2-1 do not include the PH in the earned awards listed.  His OMPF is void of any orders or other documents indicating he was ever recommended for or awarded the PH by proper authority while serving on active duty.  Additionally, there is no indication the applicant pursued this issue in the nearly 15 years he continued to serve on active duty subsequent to his service in the RVN and prior to his retirement.  

4.  Finally, the applicant’s name is not listed on the Vietnam Casualty Roster, the official DA list of RVN battle casualties; and there are no PH orders for him maintained on the ADCARS database that is maintained by HRC.  As a result, absent any evidence of record corroborating the applicant’s claim his booby trap wounds were received as a result of enemy action and required treatment by military medical personnel, the regulatory burden of proof necessary to support award of the of the PH has not been satisfied in this case.  

5.  The applicant and all others concerned should know 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)                                         AR20100022327



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ABCMR Record of Proceedings (cont)                                         AR20100022327



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