IN THE CASE OF:	  

		BOARD DATE:	  4 May 2011

		DOCKET NUMBER:  AR20100026136 


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, in effect, award of the Purple Heart and correction of his DD Form 214 (Armed Forces of the United Report of Transfer or Discharge) to show this award.

2.  He states that his DD Form 214 does not show award of the Purple Heart.  This was an oversight on his part and of the Department of Veterans Affairs (VA), or it would have already been corrected.

3.  He provides:

* his DD Form 214
* a chronological list of events from his VA File

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 on
27 September 1966 for a period of 2 years.  He completed training and he was awarded military occupational specialty 11D (armor intelligence specialist).  He served in Vietnam from 28 August 1967 to 27 March 1968.  He was assigned to Troop B, 1st Squadron, 11th Armored Cavalry Regiment.

3.  Item 38 (Record of Assignment) of his DA Form 20 (Enlisted Qualification Record) shows he departed Vietnam on 27 March 1968 in a patient status en route to the Medical Holding Company at Fort Sam Houston, TX.  He remained in a patient status until 29 May 1968 when he was reassigned to the 1st Armored Division at Fort Hood, TX.  His record does not show the reason for his patient status.

4.  He was honorably released from active duty on 13 September 1968 in pay grade E-4, to attend school.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not show the Purple Heart.

6.  There is no evidence in his record showing he was wounded during his period of service in Vietnam.  There are no official orders in his military personnel records authorizing him award of the Purple Heart.

7.  Item 40 (Wounds) of his DA Form 20 does not reflect he was wounded as a result of hostile enemy action and Item 41 (Awards and Decorations) of this form does not list the Purple Heart.

8.  His name is not shown on the Vietnam casualty listing.

9.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), 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 any orders for the Purple Heart pertaining to the applicant.

10.  He provided a chronological list of events from his VA File.  This list states, in effect, he was wounded in his right eye on 29 January 1968 while serving in Vietnam and he was evacuated to Brooke General Hospital, Fort Sam Houston, on 29 Mach 1968.  The list also states on 8 October 1968, he applied for service-connected disability for single fragment wound to the face, eyes, stomach, arms, and complete body.  On 4 December 1968, he was examined at the Veterans Administration Hospital, New Orleans, LA.  The list does not state the cause of his injuries.

11.  Army Regulation 600-8-22 (Military Awards), states the Purple Heart is awarded for an injury or wound 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 medical personnel, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention for award of the Purple Heart was carefully considered.  By regulation, in order to support award of the Purple Heart there must be evidence confirming the wound/injury for which the award is being made was received as a direct result of or was caused by enemy action, the wound/injury must have been treated by medical personnel, and a record of this treatment must have been made a matter of official record.

2.  He provided insufficient evidence and there is no evidence of record to show he was wounded or injured as a result of hostile action during his period of service in Vietnam and he was awarded the Purple Heart.  There are no orders in ADCARS confirming he was awarded the Purple Heart.  His name does not appear on the Vietnam casualty listing.

3.  Absent corroborating evidence confirming his contention (such as his service medical records, which he should be able to obtain from the VA), the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  Therefore, he is not entitled to award of the Purple Heart and its addition to his DD Form 214.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100026136



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ABCMR Record of Proceedings (cont)                                         AR20100026136



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