IN THE CASE OF:	  

		BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20110000857 


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 (PH).

2.  The applicant states he was wounded in Vietnam and was hospitalized.

3.  The applicant provides a letter from the Department of Veteran Affairs and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 record shows he enlisted in the Regular Army on 11 February 1970.  He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 36K (Field Wireman).  
3.  On 13 October 1971, he was honorably separated from active duty after completing 1 year, 8 months, and 3 days of creditable active service.  The highest rank he attained while serving on active duty was specialist four/pay grade E-4.

4.  The applicant's records show he served in the Republic of Vietnam (RVN) from 13 July 1970 through 17 September 1970.  During his Vietnam tour, he was assigned to Headquarters and Headquarters Battery (HHB), 8th Battalion, 4th Artillery, performing duties in MOS 36K as a field wireman.

5.  The DD Form 214 he was issued lists the following awards in item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized):

* National Defense Service Medal
* Vietnam Service Medal with bronze service star
* Expert Marksmanship Qualification Badge (M-14)

6.  The AJJSU Form 40-R (Questionnaire for Patients Admitted from Overseas) in the applicant's record shows the applicant was not wounded in action (WIA) and a DA Form 2496 (Disposition Form - Financial Statement) shows the applicant was not wounded in action due to a hostile action in the Republic of Vietnam on 21 August 1970.

7.  There are no orders in the applicant's service personnel records which show that he was awarded the Purple Heart.  His DA Form 20 (Enlisted Qualification Record) does not show any entry in Item 40 (wounds) or list the Purple Heart in Item 41 (Awards and Decoration).   

8.   During the processing of this case, a member of the Board's staff reviewed the Department of the Army Vietnam Casualty Roster.  The applicant's name was not included on the roster.

9.   Army Regulation 600-8-22 (Military Awards) provides that the PH is awarded for a wound sustained 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 contends he is entitled to award of the PH.  There is insufficient evidence to support this request.

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

3.  The evidence of record fails to show the applicant was wounded as a result of hostile action.  Item 40 of his DA Form 20 is blank, and the PH is not included in the list of earned awards in Item 41.  His name is not included on the Department of the Army Vietnam Casualty Roster, the official Department of the Army list of RVN casualties.  As a result, the regulatory burden of proof necessary to support award of the PH has not been met.  Therefore, the evidence does not support award of the PH.

4.  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)                                         AR20110000857



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ABCMR Record of Proceedings (cont)                                         AR20110000857



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