BOARD DATE:	  18 October 2011

		DOCKET NUMBER:  AR20110008139 


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 riding guard on top of a deuce and a half (2 1/2 ton truck) towing a trailer that went out of control.  He was thrown from the truck into the highway and landed on his back.  He was hit by the trailer that the truck was towing.  No one could tell him what happened to the convoy, no one knew if the truck was hit by enemy fire, or a landmine.  He stayed in Tan Son Nhut Hospital more than 2 weeks.  The first week he was totally paralyzed from the waist down.

3.  The applicant provides:

* two statements from former Soldiers
* a letter, dated 8 March 2011, from the National Personnel Records Center (NPRC), St. Louis, MO
* a letter, dated 2 December 2008, from Department of Veterans Affairs (VA) New York Harbor Healthcare System
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a letter, dated 12 November 2010, from his former Congressional Representative


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.  He was inducted into the Army of the United States on 5 January 1966.  He completed basic combat and advanced individual training and was awarded military occupational specialty 67N (UH-1 Helicopter Repairman).

3.  He was assigned to the 173rd Assault Helicopter Company in the Republic of Vietnam from 16 June 1966 to 4 June 1967.

4.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) contains no entries.

5.  Item 41 (Awards and Decorations) of his DA Form 20 does not show award of the Purple Heart.

6.  His service medical records were not available for review.  His name does not appear on the Vietnam casualty listing.

7.  On 4 January 1968, he was honorably discharged.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 for this period of service does not show he was awarded the Purple Heart.  There are no orders in his Military Personnel Records Jacket (MPRJ) awarding him the Purple Heart.

8.  Both letters from former Soldiers that he submitted specifically state they were not with him on the day his convoy was attacked.  However, they do attest to the fact that he was in the hospital at Tan Son Nhut for a period of time.

9.  The letter from NPRC stated a search was conducted for clinical records for Tan Son Nhut, Vietnam for 1966 and 1967 which produced negative results.  No record was found to show he is authorized the Purple Heart.
10.  The letter from the VA New York Harbor Healthcare System states he has a service connected disability evaluated at 100 percent.

11.  A 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 awarding him the Purple Heart.

12.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9, of the version in effect at the time, stated that a brief description of wounds or injuries (including injury from gas) requiring medical treatment that were received through hostile or enemy action, including those requiring hospitalization, would be entered in item 40 of the DA Form 20.

13.  Army Regulation 672-5-1 (Military Awards), then in effect, provided that the Purple Heart was awarded to any member of an Armed Force or any civilian national of the United States who while serving under competent authority in any capacity with one of the U.S. Armed Services had been wounded, killed, or who had died as a result of 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.  His statement does not indicate his injury was due to action by the enemy.  He specifically states that no one knew if the truck was hit by enemy fire or a landmine.

2.  The statements he submitted from the two former Soldiers specifically indicate they were not present when he was injured.  Therefore, the individuals cannot attest to whether or not the applicant was injured as a result of enemy action.

3.  Item 40 of the applicant's DA Form 20 is blank and he is not listed on the Vietnam casualty listing.  His service medical records were not available for review.

4.  In the absence of evidence showing he was wounded as result of hostile action, the wound required treatment by medical personnel, and the medical treatment was made a matter of official record there is an insufficient basis to award the Purple Heart in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.





      _______ 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)                                         AR20110008139



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110008139



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1