IN THE CASE OF:	  

		BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100022995 


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 sustained a superficial fragment wound while serving in the Republic of Vietnam (RVN).

3.  The applicant provides copies of a Standard Form 509 (Doctor's Progress Notes) and a Department of Veterans Affairs (VA) Rating Decision.

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 enlisted in the Regular Army for a period of 3 years on 31 October 1968.  Upon completion of training he was awarded military occupational specialty 12B (Combat Engineer).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

	a.  item 31 (Foreign Service) he served in the RVN from 4 December 1970 through 29 July 1971,

	b.  item 40 (Wounds) is blank, and

	c.  item 41 (Awards and Decorations) does not list the Purple Heart.

4.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was honorably released from active duty on
30 July 1971 and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his Reserve obligation:

   a.  He had completed 2 years and 9 months of net active service.

	b.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) does not show the Purple Heart.

5.  A review of the applicant's military personnel records failed to reveal any evidence he was authorized or awarded the Purple Heart.

6.  A review of the Vietnam casualty roster revealed the applicant's name is not on the roster.

7.  A review 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 pertaining to award of the Purple Heart to the applicant.

8.  In support of his application, the applicant provides the following documents:

	a.  A Standard Form 509 shows the applicant was treated for a superficial fragment wound on 21 January 1971 that he had sustained 3 days prior.

	b.  A VA Form 21-6796 (Rating Decision), dated 30 November 1971, shows the applicant's service medical records "…show that in 7/70 [July 1970] while in Vietnam [the applicant] sustained a superficial fragment wound of [his] lower left chest wall."  It also shows he was treated in the field; he was not hospitalized.

9.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.  The Purple Heart is awarded to any member who was wounded or killed in action.  A wound is defined as an injury to any part of the body from an outside force, element, or agent sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy.  In order to support awarding a member the Purple Heart, it is necessary to establish the wound for which the award is being made required treatment by medical personnel and the medical treatment for the wound or injury received in action must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the Purple Heart because he was injured while serving in the RVN.

2.  The applicant's claim was carefully considered.

	a.  The Doctor's Progress Notes that document the applicant's injury shows he sustained a superficial fragment wound on or about 18 January 1971.  It is noted that this document does not offer any evidence regarding the cause or circumstances of the injury.

	b.  Thus, the evidence the applicant provides is insufficient to support a claim to the Purple Heart.

3.  The sincerity of the applicant's claim is not in question.  However, in order to support awarding a member the Purple Heart, it is necessary to establish the wound for which the award is being made was sustained while in action in the face of the armed enemy or as a result of a hostile act of such enemy, the wound required treatment by medical personnel, and the medical treatment for the wound or injury must have been made a matter of official record.

4.  There is no evidence in the applicant's available military service records to satisfy the strict requirements for award of the Purple Heart.  In addition, the applicant's name is not listed on the Vietnam casualty roster and there is no evidence the applicant was awarded the Purple Heart.

5.  In view of all of the foregoing, there is insufficient evidence to support the applicant's claim to the Purple Heart.



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 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 this action 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.



      _____________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)                                         AR20100022995



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ABCMR Record of Proceedings (cont)                                         AR20100022995



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