IN THE CASE OF:	  

		BOARD DATE:	  10 May 2011

		DOCKET NUMBER:  AR20100026932 


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 for injuries received in Vietnam.

2.  The applicant states two punji sticks stuck into his stomach when he hit the ground upon being attacked during a night patrol in Vietnam.  He fell down a hill, tore up his right leg skin and was hospitalized 1 month for a staph infection.  He was then sent to a hospital in Japan for 3-4 months.  He was discharged from the hospital in Japan but could not go back to Vietnam as his doctor did not want his leg to get re-infected with staph so he was sent to Korea to finish his hardship tour.

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

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's records show he was inducted into the Army of the United States on 8 December 1965 and he was initially awarded military occupational specialty 11B (Light Weapons Infantryman).  He served in Vietnam as follows:

* from 13 September 1966 to 21 February 1967 while assigned to 3rd Battalion, 12th Infantry, 4th Infantry Division
* from 21 February to 3 March 1967 while assigned to the Patient Casual Company in a patient status

3.  His record does not contain any documentation that indicates the illness and/or injury or circumstances surrounding this assignment to the Patient Casual Company.

4.  On or about 3 March 1967, he was assigned to the Medical Holding Detachment, 106th General Hospital, Japan.

5.  On or about 27 April 1967, he was assigned to the 177th Replacement Company, 38th Replacement Battalion, Japan, for further assignment as directed.  

6.  On 24 September 1967, he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group to complete his remaining Reserve obligation.  He completed 1 year, 9 months, and 17 days of creditable active service.

7.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the National Defense Service Medal, Vietnam Service Medal, Combat Infantryman Badge, and the Expert Marksmanship Qualification Badge with Rifle Bars (M-14) and (M-16).

8.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) contains no entry and there are no official orders in his records that show he was awarded the Purple Heart.

9.  The Vietnam Casualty List, a compilation of all casualties during the Vietnam War, does not list the applicant as a casualty.


10.  A review of the Awards and Decorations Computer Assisted Retrieval System maintained by the Military Awards Branch of the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders for the Purple Heart pertaining to him.

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, 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 criteria for award of the Purple Heart requires a Soldier to have been injured or wounded by hostile action, the wound or injury must have required treatment by medical personnel, and the treatment must have been made a matter of official record.

2.  The evidence of record does show the applicant was hospitalized more than 1 week in a patient status while in Vietnam and he was further assigned to a hospital in Japan for almost 2 months.  However, there is no evidence in his record and he did not provide any evidence that shows this hospitalization was the result of an injury or wound caused by a hostile act on the part of the enemy.  Notwithstanding the applicant's sincerity, in the absence of documentary evidence that shows he received a wound or injury as a result of hostile action and he was treated for those wounds, regrettably, there is insufficient evidence upon which to base award of the Purple Heart.

3.  Nevertheless, this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20100026932



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ABCMR Record of Proceedings (cont)                                         AR20100026932



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