IN THE CASE OF:	  

		BOARD DATE:	    24 May 2011

		DOCKET NUMBER:  AR20100027412 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Purple Heart and the proper amount of time he served in the Republic of Vietnam.

2.  He states his record is in error because it does not show the Purple Heart he received while in Vietnam.  He also believes he was in Vietnam more than 2 months and 11 days.

3.  He provides his DD Form 214.

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.  His record shows he was inducted into the Army of the United States on 5 December 1963.  The highest rank/grade he attained while serving on active duty was specialist four/E-4.  On 3 December 1965, he was released from active duty under honorable conditions and transferred to the U.S. Army Reserve Control Group (Annual Training) for completion of his Reserve obligation.

3.  His DA Form 20 (Enlisted Qualification Record) contains the following pertinent information.

	a.  Item 31 (Foreign Service) shows he served in the Republic of Vietnam from 20 September through 25 November 1965, a period of 2 months and 6 days.

	b.  Item 40 (Wounds) is blank.

	c.  Item 41 (Awards and Decorations) does not show award of the Purple Heart.

4.  His DA Form 24 (Service Record) contains the following pertinent information.

	a.  Section 2 (Chronological Record of Military Service) shows that during his tour of duty in the Republic of Vietnam he was assigned to Company A 121st Signal Battalion, from 21 September through 25 November 1965.

	b.  Section 5 (Service Outside Continental United States (CONUS)) shows he departed Oakland, CA, on 21 September 1965 en route to Vietnam and arrived back in Oakland, CA, on 1 December 1965, a period of 2 months and 11 days.

	c.  Section 7 (Combat Record) is blank.

	d.  Section 8 (Wounds Received Through Enemy Action) is blank.

	e.  Section 9 (Medals, Decorations, and Citations) does not show award of the Purple Heart.

5.  The Standard Form 88 (Report of Medical Examination) rendered during his preseparation physical medical examination on 3 December 1965 shows the results of his clinical evaluation were normal.  Item 74 (Summary of Defects and Diagnoses) and item 75 (Recommendations – Further Specialist Examinations Indicated) each contain the entry "None."

6.  His DD Form 214 contains the following pertinent information.

	a.  Item 24c (Foreign and/or Sea Service) shows he served in the U.S. Army Pacific theater of operations [which included the Republic of Vietnam] for a period of 2 months and 11 days.

	b.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) does not show award of the Purple Heart.

	c.  Item 27 (Wounds Received as a Result of Action with Enemy Forces) contains the entry "NONE."

7.  His name does not appear on the Vietnam casualty roster.

8.  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 any orders for the Purple Heart.

9.  There is no evidence in the available record and he has not provided any evidence showing he sustained any injuries as a result of hostile action or that he was treated for wounds sustained as a result of hostile action.

10.  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 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.

11.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214 and states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  In pertinent part, this regulation stipulates that item 24c will reflect total active duty service outside CONUS for the period covered by the DD Form 214 and the last overseas theater in which service was performed.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his record should be corrected to show he was awarded the Purple Heart and the proper amount of time he served in the Republic of Vietnam were carefully considered.

2.  There is no evidence in the available record and the applicant has not provided sufficient evidence which shows he sustained an injury as a result of hostile action or that he received treatment for injuries sustained as a result of hostile action.  Accordingly, based on the foregoing, there is insufficient evidence to award him the Purple Heart.

3.  The evidence shows the applicant departed Oakland, CA, on 21 September 1965 en route to Vietnam and arrived back in Oakland, CA, on 1 December 1965, a period of 2 months and 11 days.  This period of time is reflected in item 24c of his DD Form 214 and he has not provided any evidence showing this period is in error.  Therefore, there is no basis for modifying his DD Form 214 to indicate additional foreign service.

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 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)                                         AR20100027412



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ABCMR Record of Proceedings (cont)                                         AR20100027412



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