IN THE CASE OF:	  

		BOARD DATE:	  3 November 2011

		DOCKET NUMBER:  AR20110012022 


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, in effect, he was recently awarded a disability rating of 60% as a result of exposure to Agent Orange in Vietnam during the 1967/1968 time frame.  He also has ischemic heart disease, which resulted in open heart surgery (3-way bypass) in April 2010.  Since the referenced award was a result of combat exposure in Vietnam, he believes he should be awarded the Purple Heart.

3.  The applicant provides a Department of Veterans Affairs (VA) rating decision.

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 was inducted into the Army of the United States on 20 July 1966 and he held military occupational specialty 71F (Postal Clerk).  He served in Vietnam from 10 December 1967 to on or about 10 July 1968.  He was assigned to the Adjutant General Company, Special Troops Battalion, U.S. Army Vietnam.

3.  He was honorably released from active duty on 11 July 1968.  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
* Vietnam Campaign Medal
* Overseas Service Bar
* Army Commendation Medal
* Good Conduct Medal

4.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not reflect a combat wound or injury.

5.  His records do not contain general orders authorizing him award of the Purple Heart and his name is not shown on the Vietnam casualty roster.

6.  A review of the Awards and Decorations Computer Assisted Retrieval System maintained by the Military Awards Branch of the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders for the Purple Heart pertaining to the applicant.

7.  His service medical records are not available for review with this case.  He submitted a copy of his VA rating decision, dated 23 November 2010, awarding him service-connected disability compensation for ischemic heart disease, status post coronary artery bypass graft associated with herbicide on the basis of presumption of exposure to Agent Orange from his service in Vietnam.

8.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained while in action against and 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.

	a.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:  injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy generated explosions.

	b.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows:  frostbite or trench foot injuries; heat stroke; food poisoning not caused by enemy agents; chemical, biological, or nuclear agents not released by the enemy; battle fatigue; disease not directly caused by enemy agents; accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; self-inflicted wounds, except when in the heat of battle and not involving gross negligence; post-traumatic stress disorders; and/or jump injuries not caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The criteria for the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.

2.  The applicant's service record is void of any orders that show he was awarded the Purple Heart or that he was wounded or injured as a result of combat.  His name is not listed on the Vietnam casualty roster.  His service medical records are not available for review with this case.  However, he requests it due to exposure to Agent Orange.  Agent Orange was a chemical released by American forces to defoliate the jungle and deprive the enemy of cover.  It was not released by the enemy, and it was not released by American forces with the intent of destroying the enemy.  

3.  Notwithstanding the applicant's contention and sincerity, in the absence of documentation that shows he was wounded or injured as a result of enemy action and treated for those wounds, there is insufficient evidence upon 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)                                         AR20110012022





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ABCMR Record of Proceedings (cont)                                         AR20110012022



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