IN THE CASE OF:	  

		BOARD DATE:	  8 December 2011

		DOCKET NUMBER:  AR20110011846 


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 records to show award of the Purple Heart.

2.  He states he was on a combat patrol in Cambodia while he was assigned to Company E, 3rd Battalion, 22nd Infantry, 25th Infantry Division, when they were ambushed by small arms and rocket-propelled grenades on 30 May 1970.  The platoon suffered several casualties and he was wounded in the right leg and thigh, received medical treatment in the field, and continued with the mission because they were very short of personnel.  He was told he would receive the Purple Heart, but he never received orders.  He left Vietnam shortly thereafter and tried to forget about that terrible day.

3.  He further states that for the past 40 years he just felt lucky to be alive and tried to forget the incident.  He recently visited the Vietnam Memorial in Washington, DC, and saw the names of his fellow Soldiers who were killed that day causing him to relive that event.  He has the Purple Heart medal but does not have orders.  He was able to contact one of the Soldiers involved in the ambush who has written a statement which he attached to this request.

4.  He provides a statement from a fellow Soldier.

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 19 February 1969.  He completed training and was awarded the military occupational specialty of infantryman.

3.  His DA Form 20 (Enlisted Qualification Record) shows he was assigned to various infantryman duty positions while serving a tour of duty in the Republic of Vietnam from 2 August 1969 to 27 July 1970.

4.  His records do not contain any evidence that indicate he was ever awarded the Purple Heart.

5.  He was honorably retired from active duty on 28 February 1993.

6.  Item 24 (Decorations, Medal, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 28 February 1993 does not list the Purple Heart.

7.  Item 40 (Wounds) of his DA Form 20 is blank and item 41 (Awards and Decorations) does not list the Purple Heart.

8.  The Vietnam casualty list does not contain his name.

9.  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 award of the Purple Heart pertaining to him.

10.  He provides a statement from a fellow Soldier wherein the individual stated the applicant was with his unit in Cambodia on 30 May 1970 when it was hit by rocket-propelled grenades.  He could not remember the applicant being wounded, but he contacted another Soldier, R____ W____, who told him the applicant was his machine gunner on his Jeep.  The applicant and R____ W____ deserve a Silver Star for their heroism on that day.

11.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained 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 applicant contends he was wounded in the right leg and thigh when his platoon was ambushed by small arms and rocket-propelled grenades and he received medical treatment in the field.  However, notwithstanding the fellow Soldier's statement provided by the applicant, there is no evidence in his available military personnel records or sufficient corroborating evidence showing he was wounded as a result of hostile action, treated for such a wound, or that it was made a matter of official record.

2.  There were no orders for award of the Purple Heart pertaining to the applicant found in a review of ADCARS.  His name is not listed on the Vietnam casualty list.

3.  In the absence of evidence that he was wounded or injured as a result of hostile action and treated for such wounds, there is insufficient evidence upon which to base award of the Purple Heart.  As a result, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.  Therefore, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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 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)                                         AR20110011846



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ABCMR Record of Proceedings (cont)                                         AR20110011846



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