IN THE CASE OF:	  

		BOARD DATE:	  30 June 2011

		DOCKET NUMBER:  AR20100029997 


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.  The applicant states he was wounded in April 1966 in the Republic of Vietnam (RVN).  He was assigned to the 3rd Battalion, 21st Infantry Regiment, 196th Infantry Brigade.  An enemy mortar round landed nearby and shrapnel hit him in his left leg.  His Department of Veterans Affairs (VA) medical doctor has 
x-rays that prove he is still carrying shrapnel in his left leg.  He also states he stepped into a punji pit and was wounded and unable to get out because of the fierce fighting.  After a few weeks in the field, his wounds had healed.  He was supposed to have been submitted for the Purple Heart, but it was forgotten.  He now suffers from post-traumatic stress disorder and has been an in-patient 13 or 14 times, with each visit 9 or 10 weeks in length.  He lived in the woods for 2 or 3 years right after returning from the RVN.  He is now on medications that keep him from returning to those woods or committing suicide.  He now wants to be awarded the Purple Heart.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a letter from his VA medical doctor.

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.  On 6 October 1965, the applicant was inducted into the Army of the United States.  He completed his initial training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  On 16 April 1966, the applicant was assigned as an infantryman to Company D, 3rd Battalion, 21st Infantry Regiment, located at Fort Devens, MA.

4.  On 15 July 1966, the applicant went with his unit to the RVN where he performed duty as a scout observer.

5.  He departed the RVN on or about 7 July 1967.

6.  On 13 July 1967, the applicant was released from active duty.  He had attained the rank of specialist four/pay grade E-4 and had completed 1 year, 9 months, and 8 days of creditable active duty service.

7.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 as subsequently corrected by a DD Form 215 (Correction of DD Form 214) lists his awards as:

* Army Good Conduct Medal
* National Defense Service Medal
* RVN Campaign Medal
* Vietnam Service Medal with two bronze service stars
* Combat Infantryman Badge
* RVN Gallantry Cross with Palm Unit Citation
* Expert Marksmanship Qualification Badge with Rifle Bar
* Marksman Marksmanship Qualification Badge with Automatic Rifle Bar

8.  The applicant's name is not listed on the Vietnam casualty roster.

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

	a.  no entries in item 40 (Wounds) and

	b.  RVN Campaign Medal, National Defense Service Medal, Vietnam Service Medal, Combat Infantryman Badge, and Army Good Conduct Medal in item 41 (Awards and Decorations).

10.  The applicant's service medical records are not available for review.

11.  In a letter, dated 5 December 2009, the Chief, Military Awards Branch, U.S. Army Human Resources Command, informed the applicant of the criteria for award of the Purple Heart.  He was also informed that his name was not listed as a battle casualty in the RVN and that the VA medical doctor's statement, while helpful, was not sufficient without documentation verifying that he had received medical treatment for wounds received as a result of enemy action.  The letter advised the applicant that he might find substantiating evidence if he conducted a review of his former unit's morning reports.

12.  Army Regulation 600-8-22 (Military Awards) provides for award of the Purple Heart to a member of the Armed Force or any civilian national of the United States who, while serving in any capacity with one of the U.S. Armed Services after 5 April 1917, has been wounded or killed or who has died or may die after being wounded in any action against an enemy of the United States.  Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

13.  Army Regulation 600-200 (Enlisted Personnel Management System) in effect at the time provided instructions for the completion of the DA Form 20.  Paragraph 9-53 specified to enter a brief description of wounds or injuries received through hostile or enemy action requiring medical treatment and/or hospitalization in item 40.  The date wounded or injured was also to be entered.

14.  In a letter, dated 1 July 2010, the applicant's attending physician from the VA Medical Center, Iron Mountain, MI, stated that x-rays indicate the applicant has multiple irregular metallic densities in the soft tissues of his left femur [leg].  The doctor further states he believes these densities to be shrapnel from his wound in the RVN.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests to be awarded the Purple Heart because he was wounded in combat in the RVN in April 1966.

2.  The Vietnam casualty roster does not contain the applicant's name.  The applicant's DA Form 20 does not indicate he received any wounds while in action.

3.  The applicant's service medical records are not available and the letter from the applicant's VA doctor is insufficient to show he was wounded as a result of enemy action or that the metallic fragments in his left leg were acquired in the RVN.

4.  The applicant was advised to review his unit's morning reports for the possibility of finding additional evidence that would support his contentions.  However, he has not provided any evidence of doing such a search.

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20100029997



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ABCMR Record of Proceedings (cont)                                         AR20100029997



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