IN THE CASE OF:	  

		BOARD DATE:	  19 October 2011

		DOCKET NUMBER:  AR20110005963 


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 military records to show award of the Purple Heart.

2.  The applicant states he was exposed to Agent Orange resulting in contraction of malaria and the subsequent development of prostate cancer and diabetes.  He contends these conditions entitle him to the Purple Heart. 

3.  The applicant provides copies of his:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) ending on 10 December 1970
* DD Form 214 (Report of Separation from Active Duty) ending on            21 January 1974
* Pre-Test Instructions and Conditions of Admission [two pages] for the Missouri Rehabilitation Center.

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 30 December 1968, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).          

3.  On 2 May 1969, the applicant departed Fort Jackson, South Carolina for duty in the Republic of Korea (ROK).

	a.  On 31 May 1969, he was assigned as a rifleman to Company B, 2nd Battalion, 9th Infantry Regiment, 2nd Infantry Division.

	b.  A DA Form 8-274 (Medical Condition - Physical Profile Record), dated
14 May 1970, indicates that he was recovering from malaria.  He had a temporary profile.  His condition was considered temporary and he was to return to the medical facility on 29 May 1970 for further evaluation.

	c.  On 16 June 1970, the applicant departed the ROK for duty at Fort. Carson, Colorado.

4.  On 10 December 1970, the applicant was released from active duty.  He had attained the rank of specialist four, pay grade E-4 and had completed 1 year, 
11 months and 11 days of creditable active duty service.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 ending on 10 December 1970 lists his awards as the National Defense Service Medal and the Armed Forces Expeditionary Medal.

6.  The applicant's DA Form 20 (Enlisted Qualification Record) for the period of service ending on 10 December 1970 shows in:

	a.  Item 40 (Wounds): No entry 

	b.  Item 41 (Awards and Decorations): National Defense Service Medal and the Armed Forces Expeditionary Medal.

7.  On 28 September 1971, the applicant again enlisted in the Regular Army.  He retained his rank of specialist four, pay grade E-4, and continued to hold his MOS of 11B.
8.  On 18 October 1971, the applicant was assigned to Fort Carson, Colorado, in duty MOS 63B (Vehicle Repairman).  On 10 December 1972, he departed this installation for duty in the Federal Republic of Germany (FRG).

9.  On 17 January 1973, the applicant was assigned to Company A, 2nd Battalion, 6th Infantry Regiment, for duty as a team leader.

10.  On 17 January 1974, the applicant departed the FRG en-route to the United States.

11.  On 21 January 1974, the applicant was discharged.  He had completed 
2 years, 3 months, and 24 days of creditable active duty service during this period.

12.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 ending on 10 December 1970 lists his awards as the National Defense Service Medal, Armed Forces Expeditionary Medal, and the Army of Occupation Medal [Berlin] with Germany Clasp.

13.  The applicant's DA Form 20 for the period of service ending on 21 January 1974 shows in:

	a.  Item 40 (Wounds): No entry

	b.  Item 41 (Awards and Decorations): National Defense Service Medal, Armed Forces Expeditionary Medal, Army of Occupation Medal (Berlin) [with Germany Clasp], and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

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

15.  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 that 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.



DISCUSSION AND CONCLUSIONS:

1.  There are no available general orders awarding the applicant the Purple Heart.  The available military records do not show that the applicant was ever in combat or had similar combat experiences while in the ROK.  Furthermore, there is no available evidence showing that he had been exposed to Agent Orange, or that any such exposure was the result of enemy involvement.

2.  There is no available evidence showing that the applicant had contracted malaria as a result of enemy action, or that any of his subsequent medical conditions were likewise acquired.

3.  The applicant has not provided any convincing evidence or compelling argument to show that he is entitled to award of the Purple Heart.  Therefore, there is insufficient evidence upon which to base award of the Purple Heart.

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)                                         AR20110005963





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ABCMR Record of Proceedings (cont)                                         AR20110005963



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