IN THE CASE OF:	  

		BOARD DATE:	  10 May 2012

		DOCKET NUMBER:  AR20110018654 


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 he was denied membership in the Military Order of the Purple Heart.  However, he has documents and photographs that show he was wounded in action.  He states on the morning of 12 October 1970 his unit was receiving incoming.  As he ran to get into a bunker he was distracted by a loud explosion.  The next thing he remembered was being told to wake up.  His ankle was swollen and he was in pain.  His ankle was treated and wrapped in an ace bandage.  He had to wait until the following morning to be transported to the
67th Evacuation Hospital for X-rays.

3.  He further states on 13 October 1970, he was told that his ankle was broken and that he may need surgery for the ligament and bone damage.  A cast was put on his ankle and he was evacuated to Chu Rham Valley, Republic of Vietnam (RVN) for bed rest.  He states he has had two major surgeries for his injury after leaving the military.

4.  The applicant provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a letter from the National Personnel Records Center, St. Louis, MO, dated 15 August 2011
* 
Military Order of the Purple Heart, Instruction for Obtaining a Purple Heart
* a Standard Form (SF) 600 (Chronological Record of Medical Care) with an entry dated 12 October 1970
* an SF 519A (Radiographic Report), dated 13 October 1970
* an SF 88 (Report of Medical Examination), dated 30 September 1971
* a DA Form 1811 (Physical and Mental Status on Release from Active Duty), dated 30 September 1971
* a letter addressed to his then girlfriend, dated 15 October 1971
* Five photographs showing a Soldier with a cast on his left foot and one photograph showing a swollen left ankle.

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 28 February 1969.  He completed training and was awarded military occupational specialty 43E (Parachute Rigger).

3.  He arrived in the RVN on 3 August 1970 and he was assigned to C Company, 173rd Support Battalion, 173rd Airborne Brigade on 12 August 1970.

4.  He departed the RVN on 26 September 1971 en route to Fort Lewis, WA for separation processing.  On 30 September 1971, he was honorably released from active duty and he was transferred to the U.S. Army Reserve (USAR) Control Group to complete his remaining Reserve obligation.

5.  The DD Form 214 he was issued at the time does not show award of the Purple Heart.

6.  There are no general orders in the applicant's service personnel record that shows he was awarded the Purple Heart.  There is also no evidence that shows he was treated for wounds as a result of hostile action in the RVN.  The applicant's name is not listed on the Vietnam Casualty Roster.

7.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not show he was wounded and item 41 (Awards and Decorations) does not show award of the Purple Heart.

8.  The applicant's SF Form 600, dated 12 October 1970, shows he was treated at the 152nd Medical Dispensary for a sprained ankle.  There is no causal reason given for the sprained ankle.

9.  The applicant's SF 519A, dated 13 October 1970, shows no fracture of his ankle.

10.  The applicant's SF 88, dated 30 September 1971, shows no abnormalities.

11.  The applicant provided five photographs that show him standing with crutches with a cast on his left ankle and one photograph that shows a swollen left ankle.

12.  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 United States Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant.

13.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained 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, and the medical treatment must have been made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the Purple Heart.  He provided several medical documents and photographs of his left swollen foot.  While the injury to his ankle is unfortunate, there is no evidence in the available records and he has not provided any evidence that shows his injuries were the direct result of hostile action.

2.  Absent corroborating evidence showing he was treated for a wound/injury that was the direct result of or caused by enemy action the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case.

3.  Regrettably, in view of the foregoing, there is insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20110018654



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ABCMR Record of Proceedings (cont)                                         AR20110018654



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