IN THE CASE OF:	  

		BOARD DATE:  14 February 2012

		DOCKET NUMBER:  AR20110016343 


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 his record be corrected to show he qualifies for the Purple Heart (PH).  

2.  The applicant states his company commander was remiss in not presenting him the PH.  He claims he was injured while building a bunker as result of enemy fire in July 1971.  He states he was using a skill saw and an enemy firefight distracted him causing him to sever his finger with the saw causing a severe injury to his left hand. 

3.  The applicant refers to the firefight but provides no documentary evidence in support of the application. 

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 record shows the applicant enlisted in the Regular Army on 31 October 1967, and was trained in and awarded military occupational specialty (MOS) 63H (Engine and Power Train Repairer).  He was advanced to specialist four/E-4 on 22 November 1969, and this is the highest rank he attained while serving on active duty.  

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 29 July 1969 through 28 July 1970.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to the 61st and 79th Maintenance Companies, performing duties in MOS 63H as an engine and power train specialist and automobile mechanic.  Item 40 (Wounds) is blank and the PH is not included in the list of earned awards contained in item 41 (Awards and Decorations). 

4.  The applicant’s Military Personnel Records Jacket is void of orders or documents indicating he was wounded in action in the RVN.  The record contains a Standard Form 88 (Record of Medical Examination), dated 4 September 1970, which documents the applicant’s separation medical examination.  This document contains the entry “deformity of 3rd and 4th finger caused by saw in VN” in item 74 (Summary of Defects and Diagnosis).  This document makes no reference to enemy action being involved in the accident.  

5.  On 11 September 1970, the applicant was honorably released from active duty, in the rank of SP4/E-4, after completing 2 years, 10 months, and 11 days of active military service.  Item 24 (Decorations, 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) he was issued at the time shows he earned the following awards: 

* National Defense Service Medal
* Vietnam Service Medal 
* RVN Campaign Medal 
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar

6.  During the review of this case, a member of the Board's staff reviewed the Vietnam Casualty Roster.  This roster does not contain an entry pertaining to the applicant.



7.  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 United States Army Human Resources Command, also failed to reveal any orders for the PH pertaining to the applicant.

8.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards policy.  Paragraph 2-8 contains guidance on the PH.  It states the PH is awarded to members wounded in action.  It also states in order to award the PH there must be evidence of the wound for which the award is being made was received as a result of enemy action, the wound required treatment by medical personnel, and a record of the medical treatment was made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for award of the PH has been carefully considered.  However, there is insufficient evidence to support this request.

2.  By regulation, in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, that it required treatment by medical personnel, and a record of the medical treatment must have been made a matter of official record.  The applicant’s record is void of any entries or documents corroborating his claim that he was wounded in action in the RVN, or that shows he was treated for a combat-related wound by medical personnel while serving in the RVN.  He acknowledged that he did not seek treatment.

3.  The applicant’s record is void of entries or documents that indicate he was ever wounded in action.  Further, there are no documents in the applicant's MPRJ that indicate he was ever treated for a combat-related wound by medical personnel during his tour in the RVN.  

4.  Absent any evidence of record confirming the applicant’s assertion that his hand injury was the result of or caused by enemy action, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  Therefore, it would not be appropriate or serve the interest of all those who served in the RVN and who faced similar circumstances to award the applicant the PH at this late date.



5.  The applicant and all others concerned should know this action related to award of the PH 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)                                         AR20110016343



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ABCMR Record of Proceedings (cont)                                         AR20110016343



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