IN THE CASE OF:	  

		BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20100029976 


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.  He states he was wounded during combat with the enemy in Vietnam.  He never received the Purple Heart.  He feels he was discriminated against.  He also states that one of his former squad members, a white male, stated he overheard the company's first sergeant make racial references to Latinos.

3.  He provides copies of:

* a roster for Company D, 199th Infantry Brigade
* four Standard Forms 600 (Health Record – Chronological Record of Medical Care) for the period 24 March to 26 December 1969
* two Department of Veterans Affairs Forms 21-4138 (Statement in Support of Claim)
* a letter in support of his request from a former service member

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 show he was inducted into the Army of the United States in pay grade E-1 on 3 December 1968.  He completed training and was awarded primary military occupational specialty 11B (Light Weapons Infantryman).  He served in Vietnam from 28 May 1969 through 21 April 1970.  He was assigned to Company D, 4th Battalion, 12th Infantry, 199th Infantry Brigade.

3.  There is no entry in item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) showing he was wounded as a result of hostile enemy action.  Item 41 (Awards and Decorations) of his DA Form 20 contains no entry showing he was awarded the Purple Heart.

4.  He provided four Standard Forms 600 that contain the following entries; however, they do not specify the wound was a result of hostile action.

* undated – fragment wound (FW) to left leg, x-rayed and metal fragment noted, could not remove it, wound irrigated and packed
* 14 November 1969 – possible fragment, x-ray, return in 2 days
* 17 November 1969 – FW infected, area drained, released
* 18 November 1969 – FW infection draining well
* 21 November 1969 – FW to leg, continue penicillin
* 27 November 1969 – cleaned and dressed with sterile dry dressing
* 29 November 1969 – wound continues to drain though looking better
* 9 December 1969 – wound healing well, 5x5 metabolic flat fragment removed through an incision

5.  He was honorably released from active duty in pay grade E-4 on 14 September 1970 and he was transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his Reserve obligation.

6.  The Vietnam casualty list does not list his name.

7.  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 authorizing him award of the Purple Heart.

8.  He provides a statement in support of his request from a former service member.  The former service member stated he and the applicant served in the same squad of the 82nd Airborne Division.  He stated the applicant was "either wounded by a hand grenade or by a rocket; it did happen."  He states the applicant was treated in the field and then taken to the walk-in dispensary.  He feels that in the confusion the medic on the scene did not turn-in his information, perhaps thinking the dispensary would do it.  He was with the applicant when the medic removed the shrapnel from his leg.  The applicant was only able to return to the field a couple of times after the surgery due to a recurring infection of the wounds.  He and four other veterans from their company feel a great injustice has been done to the applicant.  The applicant was a good Soldier and does not deserve to go unrewarded.

9.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of entitlement to the Purple Heart and the supporting evidence provided were carefully considered.  However, in order to support award of the Purple Heart by regulation, there must be evidence confirming the injury or wound for which the award is being made was received or caused by or was a direct result of enemy action, the wound was treated by medical personnel, and a record of this treatment must have been made a matter of official record.

2.  He provided insufficient evidence to show his injury was the result of hostile action while serving in Vietnam.  The evidence does not specify or confirm he was involved in hostile action with the enemy at the time.  Given he received medical treatment from November to December 1969 for a fragment wound, as evidenced by the medical treatment record he provided, it must be presumed that military medical officials and the responsible members of his chain of command did not believe the injury in question was related to hostile action by the enemy or that the circumstances under which he received his injuries supported award of the Purple Heart.

3.  The evidence of record also contains no documents confirming his injury was caused by his participation in direct or indirect combat operations while serving in Vietnam.  His name does not appear on the Vietnam casualty list and there were no entries made in his service personnel records to show he was injured as a result of hostile action.

4.  The evidence of record shows he received medical treatment and the treatment was made a matter of official record at the time.  The supporting statement he provided is insufficient corroborating evidence to confirm the applicant's account of how he received his injury, and, therefore, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.

5.  In view of the foregoing, there is no basis for granting his request.

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)                                         AR20100029976



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ABCMR Record of Proceedings (cont)                                         AR20100029976



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