IN THE CASE OF:	  

		BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110012969 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the Purple Heart.

2.  The applicant states he served in the Republic of Vietnam (RVN) from
30 August 1969 through 29 August 1970.  He was hit by shrapnel in his left lower leg by enemy fire while serving in the central highlands near the Chu Pai mountains, Pleiku or An Khe.

3.  The applicant provides a copy of his DD Form 214, four medical treatment records, and his Department of Veterans Affairs (VA) disability rating. 

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 enlisted in the Regular Army on 20 February 1969.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

	a.  item 31 (Foreign Service):  Vietnam from 30 August 1969 through
29 August 1970;

	b.  item 38 (Record of Assignments):

* Company C, 1st Battalion, 35th Infantry, 4th Infantry Division, from
15 September 1969 through 7 March 1970
* Company E, 3rd Battalion, 12th Infantry, 4th Infantry Division, from
8 through 18 March 1970
* Company B, 3rd Battalion, 12th Infantry, 4th Infantry Division, from
19 March through 29 August 1970

	c.  item 40 (Wounds):  no entry (blank); and

	d.  item 41 (Awards and Decorations):  no listing of the Purple Heart.

4.  A Standard Form (SF) 88 (Report of Medal Examination), dated 14 January 1971, was completed at the time of the applicant's separation examination.  It shows in item 73 (Notes and Significant or Interval History) [in part]:  "My health is good except for an old wound (in Vietnam) in my left lower leg which hurts form time-to-time."

5.  The applicant's DD Form 214 shows he was honorably released from active duty on 19 February 1971 and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his Reserve obligation.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized), as corrected by a DD Form 215 (Correction to DD Form 214), dated 7 May 1982, does not show the Purple Heart.

6.  A review of the applicant's military personnel records failed to reveal any evidence he was authorized or awarded the Purple Heart.

7.  The Vietnam casualty listing does not list the applicant's name.

8.  A review of the Awards and Decorations Computer-Assisted Retrieval System, 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 orders for the Purple Heart pertaining to the applicant.

9.  On 12 March 2002, the applicant submitted a DD Form 149 (Application for Correction of Military Record) to the ABCMR requesting award of the Purple Heart.  On 14 June 2002, he was informed that he must provide the ABCMR with copies of his relevant Army medical records and any other documents that support his request.  

10.  In support of his application, the applicant provides the following documents:

	a.  three SFs 600 (Health Record - Chronological Record of Medical Care) that show:

	 	(1)  on 21 November 1969, he was treated at Headquarters and Company A, Medical Battalion, for a foreign body (fragment) in the lower third of his left leg.  He was prescribed antibiotics and no surgery was indicated;

	 	(2)  on 21 and 22 January 1970, he was seen at the 17th Field Hospital for a healed fragment wound to the anterior portion of his left leg that occurred in November 1969.  He complained of pain and stated the foreign body remained in his leg.  An x-ray of the leg was ordered and the applicant was directed to return for reevaluation and possible removal of the foreign body; and

	 	(3)  on 27 January 1970, a foreign body was extracted from his leg and the incision was sutured.  The sutures were removed on 3 February 1970.

	b.  An SF 513 (Clinical Record - Consultation Sheet), dated 21 January 1971, that shows he was examined for an occasional ache experienced during prolonged walking stemming from a fragment wound of his left anterior lower leg. It shows the fragment was removed in 1969.

	c.  A Corporate Award and Rating Data sheet, dated 24 May 2011, that shows the VA granted the applicant service connection for the residual of a shell fragment wound (left lower leg), effective 14 February 1997.

11.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.  The Purple Heart is awarded to any member who was wounded or killed in action.
A wound is defined as an injury to any part of the body from an outside force, element, or agent sustained in action in the face of the armed enemy or as a result of a hostile act of such enemy.  In order to support awarding a member the Purple Heart, it is necessary to establish the wound for which the award is being made required treatment by medical personnel and the medical treatment for the wound or injury received in action must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim to the Purple Heart was carefully considered.

	a.  The medical records the applicant provides show he was initially seen by medical personnel on 21 November 1969 for a foreign body in the lower third of his left leg.  At the time, the applicant did not report that the injury was the result of enemy action.

	b.  In January 1970, he was seen by medical personnel for a healed fragment wound to the anterior portion of his left leg and a foreign body was removed from his leg.  At that time, he reported it was the result of a fragment wound that he received in November 1969.

   c.  However, this evidence is insufficient to satisfy the strict requirements for award of the Purple Heart.
   
   d.  There is no evidence the applicant was wounded or injured in action in the face of the armed enemy or as a result of a hostile act of such enemy.

   e.  In addition, the applicant's name is not on the Vietnam casualty listing and there is no evidence the applicant was awarded the Purple Heart.

2.  The sincerity of the applicant's claim is not in question.  However, in order to support awarding a member the Purple Heart, it is necessary to establish the wound for which the award is being made was sustained in action in the face of the armed enemy or as a result of a hostile act of such enemy.  The available evidence fails to satisfy this requirement.

3.  In view of all of the foregoing, there is insufficient evidence to support the applicant's claim to the Purple Heart.
   
4.  The applicant and all others concerned should know this action in no way diminishes the sacrifices made by him 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)                                         AR20110012969



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ABCMR Record of Proceedings (cont)                                         AR20110012969



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