IN THE CASE OF:
BOARD DATE: 10 November 2011
DOCKET NUMBER: AR20110010267
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 sustained mortar shrapnel wounds to his right hand (small finger) and left leg while serving as an artilleryman in Vietnam on 8 May 1970
* This was an administrative error that had been brought to the attention of his chain of command and would have been corrected except he was seriously injured in September 1970 and he never returned to his company
* In September 1970 he received second degree burns over 13 percent of his body when a generator he was working on exploded
* He was evacuated to Camp Zama, Japan and sent back to the United States where he was discharged from a medical holding company at Fort Knox
3. The applicant provides:
* Standard Form (SF) 89 (Report of Medical History)
* Veterans Administration letter
* Documentation on a Soldier who was killed in action from the mortar that wounded the applicant
* Patient evacuation tag
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
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 5 February 1969. He served as a field artillery crewman in Vietnam from 3 July 1969 to
11 September 1970. On 25 September 1970, he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining service obligation.
3. Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the:
* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Army Commendation Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
4. There are no orders for the Purple Heart in the available records.
5. Item 41 (Awards and Decorations) of his DA Form 20 (Enlisted Qualification Record) does not show the Purple Heart and item 40 (Wounds) of his DA Form 20 is blank. His name does not appear on the Vietnam casualty roster.
6. 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 U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant.
7. He provided an undated SF 89 which states his right hand (small finger) and left leg were injured by 81mm mortars in Vietnam on 8 May 1970. However, no evidence shows these wounds were the result of hostile action in Vietnam.
8. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for 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 military personnel, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. He contends he received mortar shrapnel wounds to his right hand and left leg on 8 May 1970 in Vietnam.
2. Although the service medical record provided by the applicant states his right hand and left leg were injured due to 81mm mortars in Vietnam on 8 May 1970, there is insufficient evidence to show his injuries occurred as a result of enemy action.
3. There is no evidence of record which shows that the applicant was wounded as a result of hostile action in Vietnam. In the absence of evidence showing that the applicant was injured and treated for wounds as a result of hostile action in Vietnam, the service medical record provided by the applicant is not sufficient as a basis for award of the Purple Heart. Regrettably, there is insufficient evidence on which to base award of 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:
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) AR20110010267
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ABCMR Record of Proceedings (cont) AR20110010267
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