IN THE CASE OF:
BOARD DATE: 12 April 2011
DOCKET NUMBER: AR20100022808
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 that he be awarded the Purple Heart.
2. The applicant states that he never received the Purple Heart for an injury he received in Vietnam on 27 December 1966 when an enemy improvised explosive device (IED) exploded on the right side of the Armored Personnel Carrier (APC) and caused their injuries. He further states that the captain sitting to his left received the Purple Heart for his injury but that he did not receive one. He continues by stating that he had a 25% perforation of the right eardrum and was hospitalized for 7 days at the 93rd Evacuation Hospital in Long Binh.
3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and copies of clinical 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 applicants 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 applicants 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 in Detroit, Michigan on 5 November 1965. He completed his basic training at Fort Hood, Texas and was transferred to Fort Meade, Maryland to undergo his training as a medical specialist. He was assigned to Headquarters Troop, 1st Squadron, 11th Armored Cavalry Regiment for duty as an ambulance driver.
3. On 20 August 1966 he was transferred to Vietnam with his unit and was advanced to the pay grade of E-4 on 11 October 1966.
4. He departed Vietnam on 19 August 1967 and was transferred to Fort Dix, New Jersey, where he was honorably released from active duty (REFRAD) on 22 August 1967 as an overseas returnee. He had served 1 year, 9 months and 18 days of total active service and was awarded the Good Conduct Medal, the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal and the Combat Medical Badge.
5. A review of the applicants official records failed to show any indication that the applicant was wounded or awarded the Purple Heart. Additionally, his name is not contained on the Vietnam Casualty Listing.
6. A search of the Awards and Decorations Computer-Assisted Retrieval System, 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 orders awarding the applicant the PH.
7. A review of the clinical records provided by the applicant and which are contained in his official records shows that the applicant was admitted for treatment of a perforated tympanic membrane caused by an explosion on 27 December 1966. The treatment record indicates that the time and location were unknown and the determination of line of duty was undetermined pending an investigation.
8. Army Regulation 600-8-22 (Military Awards) provides that the PH is awarded for a wound sustained as a result of hostile action. Substantiating evidence must be provided to verify 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. While the sincerity of the applicants claim that he should be awarded the Purple Heart for his injury is not in doubt, the applicant has failed to provide sufficient evidence to show that his injury was caused by enemy action.
2. The treatment records indicate that at the time a line of determination had not been made and was undetermined pending an investigation.
3. Therefore, in the absence of sufficient evidence to show that his injury was caused by enemy action, there appears to be no basis to award him the Purple Heart at this time.
4. 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 evidence that would satisfy the aforementioned requirement.
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) AR20100022808
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ABCMR Record of Proceedings (cont) AR20100022808
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