BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20100028881 


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.

2.  The applicant states that while serving with Company B, 1st Battalion,
503rd Infantry (Airborne) in the Republic of Vietnam (RVN), he sustained fragment wounds to his face and legs from a booby trap.

3.  The applicant provides his separation medical examination documents and 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.  The applicant was inducted in the Army of the United States on 30 January 1968.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows:

	a.  that he served in the RVN from 21 January 1969 through 15 January 1970;

	b.  in item 38 (Record of Assignments) he was assigned to Company B,
1st Battalion, 503rd Infantry, 173rd Airborne Brigade, from 31 January 1969 to
15 January 1970;

	c.  in item 40 (Wounds) no entry (blank); and

	d.  in item 41 (Awards and Decorations) no listing of the Purple Heart.

4.  A Standard Form (SF) 89 (Report of Medical History), dated 19 January 1970, completed by the applicant at the time of his separation examination, shows in response to:

	a.  item 34 (Have You Consulted or Been Treated by Clinics, Physicians, Healers, or Other Practitioners Within the Past 5 Years?) the applicant placed an "X" in the "Yes" column and the entry "Vietnam - Shoulder Separation Conjunctivitis"; and

	b.  item 39 (Physician's Summary and Elaboration of All Pertinent Data) the examining medical doctor indicated, "(See Health Records)" and "[a]ll EPTS [Existed Prior To Service] except shoulder separation RVN."  It also shows, "[c]onjunctivitis [inflammation of the mucous membrane that lines the inner surface of the eyelid and the exposed surface of the eyeball] and small frag[ment] wound when booby trap exploded RVN."

	c.  The examining physician placed his signature on the document on
19 January 1970.

5.  An SF 88 (Report of Medal Examination), dated 19 January 1970, shows the examining medical doctor found the applicant qualified for separation.  Item 73 (Notes and Significant or Interval History) and item 74 (Summary of Defects and Diagnoses) do not show any entries.


6.  The applicant's DD Form 214 shows he was honorably released from active duty on 19 January 1970 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  It also shows in:

	a.  Item 22b (Total Active Service) he completed 1 year, 11 months, and 20 days of total active service.

	b.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) does not show the Purple Heart.

7.  A Veterans Administration (VA) Form 07-3101 (Request for Information), dated 20 July 1970, shows that a VA official requested information pertaining to the applicant's medical treatment while serving in the RVN.

   a.  He specifically noted a separated shoulder that occurred in November 1969 and a fragment wound to the face with eye infection in May 1969.

   b.  The Endorsement - Verification by Service Department section, dated
3 August 1970, shows "[r]ecords of alleged treatment not found."  It also shows that records were requested from the 67th Evaluation Hospital and U.S. Army Dispensary, Company B, 1st Battalion, 503rd Infantry, 173rd Airborne Brigade.

8.  A review of the applicant's military personnel records failed to reveal any evidence he was authorized or awarded the Purple Heart.

9.  A review of the Vietnam casualty listing does not contain the applicant's name.

10.  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 orders for the Purple Heart pertaining to the applicant.

11.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.  The Purple Heart is awarded to any member who was wounded or killed in action.  A wound is defined as an injury to any part of the body from an outside force, element, or agent sustained in action in the face of the armed enemy or as a result of a hostile act of such enemy.  In order to support awarding a member the 


Purple Heart, it is necessary to establish the wound for which the award is being made required treatment by medical personnel and the medical treatment for the wound or injury received in action must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the Purple Heart because he was wounded while serving in the RVN when he sustained fragment wounds to his face and legs from a booby trap.

2.  The applicant's claim was carefully considered.

	a.  Records show that at the time of his separation medical examination, the applicant claimed that he was treated for a separated shoulder and conjunctivitis.  The examining physician noted the applicant also claimed he sustained a small fragment wound when a booby trap exploded in RVN.

   b.  Records show the applicant claimed this incident occurred in May 1969. However, the evidence of record also shows that records of the alleged treatment were not found.

3.  The sincerity of the applicant's claim is not in question.  However, in order to support awarding a member the Purple Heart, it is necessary to establish the wound for which the award is being made was sustained in action in the face of the armed enemy or as a result of a hostile act of such enemy, the wound required treatment by medical personnel, and the medical treatment for the wound or injury must have been made a matter of official record.

4.  There is no record of medical treatment to satisfy the strict requirement for award of the Purple Heart.  In addition, the applicant's name is not listed on the Vietnam casualty listing and there is no evidence the applicant was awarded the Purple Heart.

5.  In view of all of the foregoing, there is insufficient evidence to support the applicant's claim to the Purple Heart.

6.  The applicant and all others concerned should know this action in no way diminishes the sacrifices made by him 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)                                         AR20100028881



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ABCMR Record of Proceedings (cont)                                         AR20100028881



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