IN THE CASE OF:
BOARD DATE: 26 May 2011
DOCKET NUMBER: AR20100026580
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 injured while he was in Vietnam and he had a 30 percent disability rating at the time of his expiration term of service (ETS) date
* he was to be discharged in October 1971, but he was not discharged until January 1972 because the surgery on his shoulder was delayed
* his injury has escalated over the years and now he has a 100 percent disability rating
* he never received the Purple Heart
3. The applicant provides:
* General Discharge Certificate
* A letter from the Case Management Division, Army Review Boards Agency, dated 10 September 2010
* A letter from the Department of Veterans Affairs (VA), dated 16 September 2009
* His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 7 January 1972
* A letter from the VA, dated 12 October 2010
* Army Medical Records
* Special Orders Number 4, dated 4 January 1972
* A DA Form 2496 (Disposition Form), dated 16 December 1971
* A letter from the Mississippi Sports Medical and Orthopedic Center, dated 2 May 2005
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. On 2 September 1969, the applicant enlisted in the Army and he completed training as a cook. He was arrived in Vietnam on 3 March 1970.
3. He departed Vietnam en-route to the States on 4 June 1971. He was discharged under honorable conditions on 7 January 1972. The DD Form 214 he received shows the following awards:
* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal
* Sharpshooter Marksmanship Qualification Badge (Rifle M-14)
* Two Overseas Service Bars
4. There is no evidence in the applicant's records showing he was wounded as a result of hostile action while he was in Vietnam. His name is not shown on the Vietnam Casualty Listing.
5. The medical records the applicant provides shows he was initially examined on 22 September 1971, at Irwin Army Hospital, Fort Riley, Kansas, after complaining of a dislocated left shoulder. According to the applicant, he dislocated his left shoulder in September 1970 when he fell from a truck. He was referred to the orthopedic clinic. There was no evidence of any fracture, dislocation, degenerative change, or free bodies.
6. A DA Form 3349 (Medical Condition Physical Profile Record), dated 16 December 1971, shows the applicant was placed on a temporary physical profile after a "Bristow" procedure, left shoulder (post operative status).
7. The letter he submits from the VA, dated 16 September 2009, certifies that he was in receipt of 100 percent disability compensation for a service-connected disability. The letter he submits from the Mississippi Sports Medicine and Orthopedic Center, dated 2 May 2005, shows he was under doctor's care and had surgery to revise a previously-placed shoulder prosthesis on the left.
8. Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained while in action against an enemy or 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 contentions have been noted. However, there is no evidence in the available record, nor has he submitted any evidence, showing he was wounded as a result of hostile action while he was in Vietnam. The available evidence shows he complained of dislocating his left shoulder after falling from a truck. He does not meet the criteria contained in the applicable regulation for Award of the Purple Heart.
2. The Purple Heart is awarded for a 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 required medical treatment, and the medical treatment was made a matter of official record.
3. In view of the foregoing, the applicant's request should be denied.
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) AR20100019761
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ABCMR Record of Proceedings (cont) AR20100026580
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