IN THE CASE OF:	  

		BOARD DATE:	  12 January 2012 

		DOCKET NUMBER:  AR20110014124 


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 and correction of his
DD Form 214 (Armed Forces of the United States Report of Separation or Discharge) to show this award.

2.  The applicant states his injury and surgeries are not listed on his DD Form 214.

3.  The applicant provides:

* DD Form 214
* DA Form 20 (Enlisted Qualification Record)
* Various medical records
* Veterans Administration (VA) Form 07-3101 (Request for Information)
* Two VA Forms 21-6796 (Rating Decision)
* A memorandum from the VA Hospital, Kansas City, MO to the VA Regional Office (VARO), St. Louis, MO, dated 18 June 1973
* A memorandum from the VARO, St. Louis to the VA Hospital, Kansas City
* Correspondence from the VA in reference to his 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 enlisted in the Regular Army on 29 July 1968 for a period of
3 years.  He completed training and he was awarded military occupational specialty 62L (Wheeled Tractor Operator).  The highest grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  He served in the Republic of Vietnam from 13 January 1969 to 11 January 1970.  He was assigned to Company B, 864th Engineer Battalion (Construction).

4.  He was honorably released from active duty on 28 July 1971 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  He completed 3 years of total active service.

5.  Item 24 (Decoration, Medals, 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) shows the:

* National Defense Service Medal
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14)
* Expert Marksmanship Qualification Badge with Grenade Bar 
* Army Good Conduct Medal
* Two overseas service bars

6.  Item 40 (Wounds) of his DA Form 20 is blank.  Item 41 (Awards and Decorations) of this form does not show award of the Purple Heart.

7.  His name is not shown on the Vietnam casualty listing.


8.  The applicant provided various medical records that show he had problems with his left eye after returning from Vietnam.  His medical records from the VA indicate his eye was injured in October of 1969 when a mortar round exploded and sand was driven into his eye.  He states the treatment consisted of washing out his eye.  He later discovered there was a scar on his eye and it was infected with a virus.

9.  There is no record of any treatment for an eye injury while he was in Vietnam.

10.  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.

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:

DISCUSSION AND CONCLUSIONS:

1.  The criteria for award of 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 treatment by medical personnel, and the medical treatment must have been made a matter of official record.

2.  His name is not shown on the Vietnam casualty listing, his DA Form 20 does not indicate any combat wounds, his available medical records do not indicate he was wounded and/or injured as a result of hostile action, and he did not submit any corroborating evidence to support award of the Purple Heart.

3.  Notwithstanding his sincerity, in the absence of additional documentary evidence such as witness statements, operation orders, morning reports, after action reports, official orders awarding him the Purple Heart, or additional documentation that conclusively shows he was wounded or injured as a result of hostile action and treated for those wounds, there is insufficient evidentiary basis for awarding him 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)                                         AR20110014124



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110014124



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1