IN THE CASE OF:
BOARD DATE: 28 April 2011
DOCKET NUMBER: AR20100025745
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 knocked out of a guard tower as a result of small arms and mortar fire. He sustained fractures to his right leg and ankle.
3. The applicant provides a copy of a photograph of him in a leg cast and a statement from a fellow Soldier.
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. Except for his separation medical history and examination, the applicant's service medical records are believed to be on permanent loan to the Department of Veterans Affairs and are not available for the Board's review. Neither the medical history provided by the applicant nor the medical examination completed at the time of his separation note alleged fractures.
3. The applicant was inducted into the Army of the United States on 8 November 1967. He completed training and he was awarded military occupational specialty 55B (Ammunition Storage Specialist).
4. He served in Vietnam from 20 June 1968 to 18 June 1969, assigned to Headquarters and Headquarters Detachment, 3rd Ordnance Battalion and then to the 54th Ordnance Company. He departed Vietnam on 18 June 1969 en route to the United States for separation processing.
5. Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) is blank. Item 41 (Awards and Decorations) of the same form does not show award of the Purple Heart.
6. The applicant was honorably released from active duty on 18 June 1969 as an overseas returnee. His DD Form 214 issued at the time shows he completed 1 year, 7 months, and 11 days of total active service. Item 24 (Decorations,
Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not show award of the Purple Heart.
7. In a letter of support a fellow Soldier, who reports having served with the applicant, the former Soldier states he witnessed the applicant breaking his leg when he fell off of a tower while on guard duty. The statement does not indicate the circumstances that caused the applicant to fall from the tower.
8. A review of the Vietnam casualty listing does not contain the applicant's name.
9. Army Regulation 600-8-22 (Military Awards), paragraph 2-8, provides that the Purple Heart is awarded for a wound sustained while in action against the enemy or as a result of hostile action. The wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. The statements of individuals are normally inadequate as the sole basis for an award of the Purple Heart because they do not fulfill the regulatory requirement that there be a record of medical treatment. However, they are normally accepted as a substantiation of the combat or the enemy origin of a wound for which there is a record of treatment.
2. While the support statement provided by the applicant indicates he did have an injury to his leg, the available evidence fails to support a finding that the applicant's wound was incurred while in action against the enemy or as a result of hostile action and that the medical treatment was made a matter of official record.
3. In view of the foregoing, there is insufficient evidence for granting the applicant's 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) AR20100025745
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ABCMR Record of Proceedings (cont) AR20100025745
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