IN THE CASE OF:	  

		BOARD DATE:	  6 December 2011

		DOCKET NUMBER:  AR20110011598 


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 to be awarded the Purple Heart.

2.  The applicant states, in effect, he should have been awarded the Purple Heart because he was injured while serving on active duty.

3.  The applicant provides a:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 1380 (U.S. Field Medical Card)
* letter from the Defense Finance and Accounting Service (DFAS)

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's record shows he enlisted in the Regular Army on 22 September 1966.  He served through a series of immediate reenlistments in a variety of assignments in both the Continental United States and overseas.  The highest rank he attained while serving on active duty was sergeant first class (SFC)/pay grade E-7.  On 30 September 1990, he was retired for length of service after completing a total of 24 years and 9 days of active duty service.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record - Part II) contains the following information:

	a.  Item 5 (Oversea Service) shows he served a tour of duty in the Republic of Vietnam during the period 14 December 1967 through 13 December 1968.

	b.  Item 9 (Awards, Decorations and Campaigns) does not show award of the Purple Heart.

	c.  Item 33 (Date) and item 34 (Signature) show he reviewed this document for administrative accuracy and authenticated it with his signature on 5 January 1990.

4.  The applicant provides a DD Form 1380, dated 29 November 1968, which shows he strained his back on 27 November 1968.  This injury was not the result of enemy action.  He was evaluated by an Army medical officer and prescribed Acetylsalicylic Acid (A.S.A. commonly known as aspirin).

5.  The applicant's record contains a Standard Form 502 (Narrative Summary (Clinical Résumé)), dated 18 July 1989, rendered for the purpose of being presented to a Medical Evaluation Board due to his receipt of a physical profile.  In pertinent part, this form shows "He had a back injury in 1968 lifting a battery for a cargo truck."  "He also had a right knee injury playing basketball in 1975 and has occasional pain in the right medial knee and stiffness in the knee with cold weather."

6.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's last DD Form 214 does not show award of the Purple Heart.

7.  There is no evidence in the available record showing he was awarded the Purple Heart.



8.  There is no evidence in the available record showing he sustained any injuries as a result of hostile action or that he was treated for wounds sustained as a result of hostile action.  Additionally, his name does not appear on the Republic of Vietnam Casualty Roster.

9.  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.

10.  The applicant provides a letter from the Retired and Annuity Pay Division of DFAS, dated 16 December 2010, which shows he was afforded an opportunity to elect to receive either Concurrent Retirement and Disability Pay or Combat Related Special Compensation during the annual Open Season provided for retirees who are eligible for both.

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that 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.  This regulation also provides, in pertinent part, examples of injuries or wounds which clearly do not justify award of the Purple Heart.  This includes accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show he was awarded the Purple Heart was carefully considered.

2.  There is no evidence in the available record and the applicant has not provided sufficient evidence showing he sustained any injuries as a result of hostile action or that he was treated for wounds sustained as a result of hostile action.  

3.  The facts that the applicant sustained an injury while serving on active duty in the Republic of Vietnam and that he receives compensation, in part, for this injury are not in question.  Although this incident occurred in the Republic of Vietnam, it appears it was the result of an accident.  Accidental injury not related to or caused by enemy action does not meet the eligibility criteria for award of the Purple Heart.  Absent evidence which conclusively shows that the applicant sustained wounds or injuries as a result of hostile action, that he was treated by medical personnel for those wounds or injuries, and that this treatment was made a matter of official record, there is insufficient basis for awarding him the Purple Heart in this case.

4.  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.

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)                                         AR20110011598





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ABCMR Record of Proceedings (cont)                                         AR20110011598



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