IN THE CASE OF:	  

		BOARD DATE:	  9 February 2012

		DOCKET NUMBER:  AR20110015383 


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 he was wounded in action in Vietnam on two occasions and two awards of the Purple Heart.

2.  The applicant states that he was assigned to the 199th Infantry Brigade, the 1st Infantry Division, and the 1st Cavalry Division (Airmobile) while serving in Vietnam.  In September 1970, he was hit in his ear by shrapnel.  In November 1970, he was wounded in his ankle and legs by shrapnel.

	a.  He states that he was told he was put in for the Purple Heart for his wounds and that orders would be issued; however, he never received them.

	b.  He adds that small pieces of steel came out of his legs for years afterwards and members of his family have witnessed this.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a "buddy statement."

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 28 July 1969.  He was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).

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

	a.  item 31 (Foreign Service):  Vietnam from 5 January 1970 through
28 November 1970;

	b.  item 38 (Record of Assignments):

* Replacement Detachment, Company A, 7th Support Battalion,
199th Infantry Brigade, from 8 through 18 January 1970
* Company B, 4th Battalion, 12th Infantry, 199th Infantry Brigade, from 19 January through 31 August 1970
* Company D, 4th Battalion, 12th Infantry, 199th Infantry Brigade, from
1 September through 1 October 1970
* Company D, 2nd Battalion, 5th Cavalry, 1st Cavalry Division (Airmobile), from 2 October through 27 November 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 88 (Report of Medal Examination), dated 6 May 1971, was completed at the time of the applicant's separation examination.  It shows in:

	a.  the Clinical Evaluation section, item 22 (Ears - General) and item 37  (Lower Extremities) a checkmark in the "Normal" column; and 

	b.  item 73 (Notes and Significant or Interval History):  "In good condition except have small problem in ankle to right foot" and the applicant's initials.

5.  The applicant's DD Form 214 shows he was honorably released from active duty on 27 July 1971 and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his Reserve obligation.

	a.  He completed 2 years of active service.

	b.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) 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 show the applicant's name.

8.  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.

9.  In support of his application, the applicant provides a statement from Mr. John R----, dated 10 April 2011.  Mr. R---- states he was a convoy commander and served with the applicant in Vietnam in 1970.

	a.  On one occasion, the applicant was in the hospital after getting sprayed with Agent Orange near Fire Base Mace.  Mr. R---- drove the applicant from the hospital back to his unit.

	b.  On another occasion, Mr. R---- picked up the applicant from his unit.  The applicant had blood and mud on his uniform around the area of his knee and ankle.  He asked the applicant "How come you are so muddy?"  The applicant responded, "If you were out here 45 days you would be bloody and moody to [sic]."

10.  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 claims to the Purple Heart were carefully considered.

	a.  The applicant's statement is non-specific as to the dates of his injuries.

	b.  The "buddy statement" the applicant provides is silent on the dates and also the cause of the applicant's knee and ankle injury.  Thus, the statement offers insufficient evidence to show that the applicant's injuries were the result of enemy action.

	c.  At the time of his separation medical examination, the applicant's lower extremities were normal.

	d.  Thus, available medical records fail to corroborate his claims.

2.  There are no military records that show 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.

   a.  There is no record of medical treatment to satisfy the strict requirement for award of the Purple Heart.

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

3.  The sincerity of the applicant's claims are 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 or as a result of a hostile act of such enemy.  The available evidence fails to satisfy this requirement.

4.  In view of all of the foregoing, there is an insufficient evidentiary basis to support the applicant's claims to the Purple Heart.


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)                                         AR20110015383



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ABCMR Record of Proceedings (cont)                                         AR20110015383



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