IN THE CASE OF:	  

		BOARD DATE:	  27 July 2011

		DOCKET NUMBER:  AR20100028810 


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 records to show the Purple Heart.

2.  The applicant states he was wounded while in the Republic of Vietnam (RVN) on 10 February 1968 and his DA Form 2-1 (Personnel Qualification Record) shows he was wounded in the head, elbow, and leg.

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 24 July 1969, a DA Form 2-1, and a National Archives Form 13042 (Request for Information Needed to Locate Medical Records).

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 military records for the period 1967-69 are not available for review.  This case is being considered based on his DD Form 214 for the period ending 24 July 1969 and his DA Form 2-1.

3.  His DD Form 214 shows that he was inducted into the Army on 25 July 1967 and was awarded military occupational specialty 12B (Combat Engineer).  It also shows that he served 11 months and 29 days of foreign service and the last overseas theater was the RVN.

4.  There are no orders in his Official Military Personnel File (OMPF) showing he was awarded the Purple Heart.  His OMPF is also void of any medical treatment records that show he was treated for a combat-related wound or injury while serving in the RVN.

5.  He was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) on 24 July 1969.  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.  A member of the Board's staff reviewed the Department of the Army RVN Casualty Roster.  His name was not included on this list of RVN casualties.  

7.  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 United States Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant.

8.  He continued his military service as a member of the USAR until he was placed on the Retired Reserve on 25 April 1994.  

9.  During his tour of duty in the RVN, the DA Form 20 constituted the enlisted personnel qualification record which provided a formal and permanent record of personnel management qualifications.  Item 40 (Wounds) of this form would have included a brief description of wounds or injuries received through hostile or enemy action that required medical treatment and the date the wound or injury occurred.  His original DA Form 20 is not available for review.  The DA Form 20 was replaced by the DA Form 2-1.  

10.  His DA Form 2-1 contains entries that pertain to his service in the RVN as well as his service while in the USAR and indicates in item 4 (Assignment Considerations) that he sustained fragment wounds to the head, elbow and leg on 10 February 1968.  However, the origin of the entry in item 4 is unknown and this form does not provide information regarding the circumstances surrounding his injuries.  His DA Form 2-1 also includes the Purple Heart in item 9 (Awards, Decorations and Campaigns).

11.  Army Regulation 600-8-22 (Military Awards) states 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 contention that he should be awarded the Purple Heart for wounds he received while serving in the RVN has been carefully considered.

2.  By regulation, in order to support award of the Purple Heart, there must be evidence the wound for which the award is being made was received as a result of enemy action, the wound must have required treatment by medical personnel, and a record of the medical treatment must have been made a matter of official record.

3.  In this case, there are no orders or documents in his OMPF showing he was awarded the Purple Heart by proper authority or that he received treatment for injuries received as a result of hostile action.  Additionally, his name is not listed in the RVN Casualty Roster.  

4.  Given the origin of the entries in his DA Form 2-1 that pertains to fragment wounds is unknown and there is no information regarding the circumstances surrounding such wounds, absent any evidence of record showing he was wounded in action while serving in the RVN, this document is not sufficient to satisfy the regulatory burden of proof necessary to support award of the Purple Heart.

5.  Regrettably, in view of the above, 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)                                         AR20100028810



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100028810



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1