IN THE CASE OF:	  

		BOARD DATE:	  27 July 2011

		DOCKET NUMBER:  AR20110001659 


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 award of the Purple Heart.

2.  The applicant states he received the Purple Heart medal but no orders or citation were issued.  He further states on 18 September 1968 a booby trap wounded eleven Soldiers of Company D, 1st Battalion, 8th Cavalry.  He states he received shrapnel wounds to his left arm, left shoulder, and left side of his face.  He states he did not go to an aid station for treatment but was treated in the field by a company medic.  He adds that he has provided additional forms to show he was assigned to the unit, the daily report showing eleven casualties, and orders awarding the Purple Heart to eight of the eleven wounded.

3.  The applicant provides his Bronze Star Medal orders; three pages of a Daily Staff Journal; Headquarters, 1st Cavalry Division General Orders Number 12439; his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 12 April 1969; and his DD Form 215 (Correction to 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.  His military records show he was inducted into the Army of the United States on 28 February 1966.  On 24 April 1967, he was discharged to accept an appointment as a commissioned officer, infantry, on 25 April 1967.

3.  His DD Form 214 in question shows that he was honorably released from active duty on 12 April 1969 in the rank of first lieutenant and transferred to the U.S. Army Reserve Control Group (Reinforcement).  He completed a total of 3 years, 1 month, and 15 days of combined enlisted and commissioned active service.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 in question and his DD Form 215 do not show award of the Purple Heart.

5.  His name does not appear on the Vietnam Casualty Roster.

6.  His records do not contain any evidence that indicates he was ever awarded the Purple Heart by proper authority.

7.  The applicant provided a Daily Staff Journal of the 1st Battalion, 8th Cavalry for the date of 18 September 1968.  This journal extract shows that D Company requested medical evacuation for five Soldiers able to walk and three on litters.  It further showed that three were seriously wounded.  Item 48 of the journal indicated an additional three Soldiers were wounded by the booby trap earlier bringing the total wounded in action to eleven.  The journal does not list the names of the wounded Soldiers.

8.  He provided Headquarters, 1st Cavalry Division General Orders Number 12439, dated 21 September 1968, on which he highlighted the names of eight Soldiers he indicates were awarded the Purple Heart for wounds incurred from the booby trap.

9.  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 for award of the Purple Heart pertaining to the applicant.

10.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart 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.  While the applicant provided a journal showing Soldiers were injured by a booby trap and the first page of an order awarding the Purple Heart to multiple Soldiers, there is no corroborating evidence he was injured during this incident or that he was treated for such wounds. 

2.  His name is not listed on the Vietnam Casualty Roster.

3.  In the absence of evidence he was wounded or injured as a result of hostile action, treated for such wounds, and that it was made a matter of official record, there is insufficient evidence upon which to base award of the Purple Heart.  As a result, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  Therefore, regrettably, there is insufficient basis for granting the applicant's requested relief.

4.  In view of the foregoing, there is no basis for granting the applicant's request 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)                                         AR20110001659



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ABCMR Record of Proceedings (cont)                                         AR20110001659



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