IN THE CASE OF:	  

		BOARD DATE:	  27 September 2011

		DOCKET NUMBER:  AR20110003257


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 during a mortar attack at Landing Zone (LZ) Betty in Vietnam.

3.  The applicant provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 11 February 2011
* a citation for award of the Army Commendation Medal
* a Task Force (TF) South Situation Report (SITREP) for 3 May 1970
* an unsigned statement from a former comrade-in-arms
* a notarized statement from a former comrade-in-arms/unit medic, dated 
9 December 2010

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 on 1 May 1969.  He was trained in and awarded military occupational specialty 11D (armored reconnaissance specialist) and he was transferred to Vietnam.

3.  The applicant served in Vietnam from 28 September 1969 to 23 September 1970 with Headquarters and Headquarters Company, 1st Battalion, 50th Infantry (Mechanized), 173rd Airborne Brigade.  This unit was based at LZ Betty located 4 miles southwest of Phan Thiet along the top of a high bluff overlooking the South China Sea.  It was part of TF South, responsible for military operations in the four southern provinces of II Corps.

4.  LZ Betty was attacked in the pre-dawn hours of 3 May 1970.  Enemy soldiers penetrated the compound perimeter and sappers destroyed helicopters and buildings.

5.  The applicant's record contains a DA Form 20 (Enlisted Qualification Record).  Item 40 (Wounds) is blank and Item 41 (Awards and Decorations) does not show the Purple Heart as an authorized award.

6.  Review of The Adjutant General's Office, Casualty Division's Vietnam casualty listing does not show the applicant's name as being wounded in action in Vietnam.

7.  There are no medical records contained in the applicant's Military Personnel Records Jacket (MPRJ), nor is there any indication that his next of kin was notified that he was wounded in action.  There are no orders awarding him the Purple Heart.

8.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant.


9.  The applicant was honorably released from active duty on 30 April 1971 at the expiration of his term of service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not show the Purple Heart as an authorized award.

10.  The SITREP provided by the applicant details the attack on LZ Betty on 3 May 1970; however, it does not list any Soldiers, by name, as having been wounded.

11.  The two statements from his fellow Soldiers indicate he was wounded; however, one states he was wounded by shrapnel on LZ Betty, and the other states he was wounded by possible grenade fragments while on patrol outside LZ Betty.

12.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.  There is no credible evidence to support awarding the applicant the Purple Heart.  The two witness statements provided by the applicant are written more than 40 years after the fact and are contradictory.

2.  Additionally, there are no medical records showing he was wounded in action, no entry in item 40 of his DA Form 20 showing he was wounded in action, no notification to his next of kin of any wounding, and no entry in the Vietnam casualty listing showing he was wounded in action.

3.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20110003257



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ABCMR Record of Proceedings (cont)                                         AR20110003257



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