IN THE CASE OF:	  

		BOARD DATE:	  9 August 2011

		DOCKET NUMBER:  AR20110002041 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests, on behalf of the applicant, two awards of the Purple Heart.

2.  Counsel states the applicant served in Vietnam during the period 1967 through 1968.  He should have been awarded the Purple Heart for shrapnel wounds below the left knee he received during an enemy mortar attack and a broken right ankle he sustained during an enemy ambush of his convoy by a large enemy force.

3.  Counsel provides:

* a self-authored letter
* three third-party statements
* page 4 of a Department of Veterans Affairs (VA) Form 10-9009 (Agent Orange Registry Code Sheet)
* the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a newspaper article about another former service member receiving the Purple Heart 60 years later
* copies of photographs taken in Vietnam, one of which shows an individual with a cast on the right leg

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 into the Army of the United States at Fort Brooke, Puerto Rico on 17 January 1967.  He was transferred to Fort Jackson, SC where he underwent his basic combat and advanced individual training as a radio operator before being transferred to Vietnam on 10 July 1967.

3.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows he was assigned to Headquarters and Headquarters Company, 27th Engineer Battalion for his entire tour in Vietnam.  He was advanced to the rank/grade of specialist four (SP4)/E-4 on 4 April 1968.

4.  He departed Vietnam on 7 August 1968 and was transferred to Fort Lewis, WA where he was honorably released from active duty (REFRAD) on 21 August 1968 as an overseas returnee.  He completed 1 year, 7 months, and 4 days of total active service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 issued at the time of his REFRAD does not show any awards of the Purple Heart.

5.  A review of the applicant’s available personnel and medical record failed to show any indication that he was wounded or injured during his Vietnam service.

6.  Review of The Adjutant General's Office, Casualty Division's Vietnam casualty listing does not contain the applicant's name.

7.  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 the Purple Heart pertaining to the applicant.


8.  The statements provided by the applicant contend he was wounded as a result of a mortar attack.

9.  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 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 sincerity of the applicant's claim that he was wounded in Vietnam and he should have been awarded the Purple Heart is not in doubt, he failed to show sufficient evidence through the evidence submitted with his application and the evidence of record that he was, in fact, wounded/injured as a result of enemy action and that treatment for his wound was made a matter of official record.

2.  The applicant’s contentions and supporting documents have been noted; however, they are not sufficient to overcome the absence of corroborating evidence that shows he was wounded or injured as a result of enemy action and that treatment was made a matter of record.

3.  In the absence of evidence to show otherwise, there appears to be no basis to grant his request.  However, this action in no way diminishes the sacrifices made by the applicant in service to this Nation during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.

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)                                         AR20110002041



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ABCMR Record of Proceedings (cont)                                         AR20110002041



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