IN THE CASE OF:
BOARD DATE: 27 September 2011
DOCKET NUMBER: AR20110006318
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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was awarded the Purple Heart, issuance of the Purple Heart, and a DD Form 215 (Correction to DD Form 214) showing this correction.
2. He states he received a shrapnel wound to his right lower leg for which the Department of Veterans Affairs (VA) has given him a service-connected disability rating.
3. He provides a VA rating decision and his 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 applicants 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 applicants 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 10 February 1969. After completing initial entry training, he was awarded military occupational specialty 16F (Light Air Defense Artillery Crewmember) and assigned to Vietnam. On 12 September 1970, he was honorably released from active duty by reason of early separation of an overseas returnee after completing 1 year, 7 months, and 3 days of total active service.
3. His record is void of documentation showing he was awarded the Purple Heart and his service medical records are not available for review.
4. No entry was made in item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record).
5. The Vietnam casualty listing does not show his name.
6. 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 Awards and Decorations Branch of the U.S. Army Human Resources Command, failed to reveal orders awarding the Purple Heart to him.
7. The VA rating decision he provides shows, effective 22 May 2003, he received a 40 percent (%) service-connected disability rating for a shrapnel wound to the right lower leg incurred during the Vietnam era. Effective 17 February 2004, his disability rating was increased to 60%. The available documentation does not show the basis upon which the VA granted service connection for this disabling condition.
8. 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 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 evidence of record shows the VA has given the applicant a service-connected disability rating for a shrapnel wound to the lower right leg incurred during the Vietnam era. A VA service-connected disability rating means that, based on a preponderance of evidence, the VA determined a disabling condition resulted from an individual's military service. The disability may or may not be related to events that involved hostile action.
2. Unfortunately, the available documentation does not show his injury was the result of hostile action, nor does it show what medical treatment he received at the time. In the absence of such evidence, there is an insufficient basis for awarding him the Purple Heart or correcting his record to show this award.
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) AR20110006318
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ABCMR Record of Proceedings (cont) AR20110006318
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