IN THE CASE OF:
BOARD DATE: 3 May 2011
DOCKET NUMBER: AR20100025055
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 he be awarded the Purple Heart.
2. The applicant states he was wounded along with three members of his squad on 1 July 1970.
3. He explains his squad was on a combat mission when a grenade booby trap was tripped. He and three others were wounded. Two were sent to a Saigon hospital and eventually sent to Japan for treatment. One was sent to the convalescent center at Cam Ranh Bay. He was treated at his battalion aid station and returned to his company on a medical profile.
4. The applicant provides a statement from a squad member, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), military orders, his award certificates, and Vietnam photographs.
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 applicants military records show that he was inducted into the Army on 12 March 1969, was awarded the military occupational specialty of light weapons infantryman, served in Vietnam from 23 January to 21 November 1970, and was promoted to pay grade E-4.
3. He was honorably released from active duty on 22 November 1970. The DD Form 214 he was issued does not list the Purple Heart.
4. The letter submitted by the applicant is from a member of his platoon in Vietnam. He states that on 1 July 1970 a booby trap wounded him and three others. He and two of the other Soldiers were hospitalized while the applicant was released to the company area after being treated for minor shrapnel wounds, neck trauma, and temporary loss of hearing. Along with the letter are orders awarding him and another Soldier the Purple Heart for wounds incurred on 1 July 1970. Those orders were issued by a military hospital.
5. The applicant's DA Form 20 (Enlisted Qualification Record) does not show the applicant being awarded the Purple Heart. Block 40 of this form, Wounds, has no entry.
6. The applicant's separation physical examination does not mention any wounds.
7. The Vietnam Casualty Roster does not list the applicant.
8. Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for wounds sustained as a result of hostile action. Substantiating evidence must be provided to verify that 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. The applicant's military records are very complete, having orders for all the awards listed on his DD Form 214. Therefore, it is apparent the applicant's unit was conscientious in having award orders issued and filed. This is further supported by the Purple Heart orders for the writer of the letter submitted by the applicant.
2. The applicant states, and the individual writing the letter states, that three of the four Soldiers injured by the booby trap were hospitalized. The applicant, on the other hand, was treated locally and returned to his company.
3. Two of the three Soldiers hospitalized were awarded the Purple Heart by the treating hospital.
4. While it is clear that the applicant was involved in the booby trap blast, in the absence of evidence to show the applicant received medical treatment for a wound incurred as a result of hostile action and that treatment was made a matter of record, there is insufficient evidence in which to grant his request.
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) AR20100025055
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ABCMR Record of Proceedings (cont) AR20100025055
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