IN THE CASE OF:	  

		BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100025136 


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 was on a combat operation in mid-April 1969 with the 2nd Platoon, Company C, 4th Battalion, 47th Infantry Regiment, 9th Infantry Division, in the Republic of Vietnam (RVN) when his unit came under attack from the Viet Cong.

	a.  They were pinned down in an open rice paddy.  A bullet from the enemy struck the rifle of the Soldier next to him, which caused a piece of metal to ricochet into his left jaw.

	b.  The medic treated him, but he did not put the applicant in for award of the Purple Heart.

	c.  He adds he still has a small amount of metal in his left jaw that causes him pain.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and two letters.

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 inducted into the Army of the United States for a period of 24 months on 22 May 1968.  Upon completion of training he was awarded military occupational specialty 11B (Light Weapons Infantryman).

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

	a.  item 31 (Foreign Service) that he served in the RVN from 7 November 1968 through 30 July 1969;

	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 shows he was honorably released from active duty on 17 May 1970 and he was transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his Reserve obligation.

	a.  He completed 1 year, 11 months, and 26 days 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:

	a.  a letter from Mr. H. D. S____, dated 27 August 2010.  He states he was the applicant's platoon sergeant in mid-April 1969 when the platoon came under attack and was pinned down in an open rice paddy.  A bullet fired by the enemy struck the rifle of the Soldier next to the applicant causing a piece of metal to ricochet into the applicant's left jaw.  He states the applicant was treated for his wound by "Doc S____" and should have been awarded the Purple Heart; and

	b.  a letter under the signature of M. D. R____, M.D., Gainesville, VA, dated 15 January 2008.  The applicant was seen for pain and x-rays showed his paranasal sinuses were clear.  The letter also contains a handwritten note that indicates, "Films reviewed (4 views).  Addendum:  Multiple shrapnel embedded in left jaw and soft tissue."  The note was signed by N____ A____, M.D., Fellow of the American College of Physicians, on 24 September 2010.

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 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 statement by the applicant's former platoon sergeant indicates he was aware the applicant was injured and that he received treatment at the time of the incident in question.  However, the former platoon sergeant offers no explanation as to why he did not take action to ensure the applicant (a member of his platoon) was awarded the Purple Heart.

	b.  Both the applicant and his former platoon sergeant state metal from a bullet ricocheted into the applicant's left jaw.  The handwritten note from the applicant's doctor indicates the applicant has "multiple shrapnel embedded in left jaw and soft tissue."

	c.  Neither the applicant nor his former platoon sergeant is certain as to the date of the incident.

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 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 record of medical treatment to satisfy the strict requirement 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)                                         AR20100025136



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ABCMR Record of Proceedings (cont)                                         AR20100025136



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