IN THE CASE OF:	  

		BOARD DATE:  15 March 2012

		DOCKET NUMBER:  AR20110018986 


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:

	a.  He is blind in his left eye from an injury he received in 1967 while serving in Vietnam with Battery C, 77th Artillery, 4th Infantry Division.  He was in a bunker when a mortar round hit a wall causing it to collapse.  A wooden timber fell, hit him in the head, and a splinter from the timber struck him in his left eye.  The battery medic removed it on the spot and no follow-up care was needed.  Later, a doctor at Fort Leonard Wood, MO, told him that over the years the injury caused damage to his optic nerve and over time he would lose vision in that eye.  He did so about 3 years after leaving the service.

	b.  He is a 100-percent disabled veteran because of the eye and numerous other service-connected problems from three tours in Vietnam.  A Department of Veterans Affairs (VA) representative told him he should be eligible for a Purple Heart because of the injury.  He feels the loss of vision in one eye from an injury caused from an enemy attack meets the criteria for this award.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 10 November 1982 and a letter. 




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's records show he enlisted in the Regular Army on 18 April 1966 and he held military occupational specialty (MOS) 13B (Field Artillery Crewmember).  He served in Vietnam while assigned as follows:

* 22 September 1966 - 15 September 1967, 2nd Battalion, 77th Artillery, 4th Infantry Division
* 2 May 1968 - 16 January 1969, 16th Artillery, 4th Infantry Division

3.  He was honorably released from active duty on 18 January 1969 and transferred to the U.S. Army Reserve.  He completed 2 years, 9 months, and 1 day of creditable active service during this period of service.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued for this period of service does not show award of the Purple Heart.

5.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) contains no entries and item 41 (Awards and Decorations) does not show the Purple Heart.

6.  After a break in service, he enlisted in the Regular Army on 19 June 1970 and he held MOS 98C (Traffic Analyst) and 00E (Recruiter).  He served in Vietnam in MOS 98C while assigned as follows:

* 4 May 1971 - 29 January 1972, 265th Radio Research Company
* 30 January - 3 February 1972, 8th Radio Research Field Station

7.  He was honorably discharged from active duty on 10 November 1982.  He completed 12 years and 5 months of active service during this period of service for a total of 15 years, 6 months, and 27 days of creditable active service.

8.  Item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized (All Periods of Service)) of the DD Form 214 he was issued for this period of service does not show award of the Purple Heart.

9.  There are no orders in his records showing award of the Purple Heart.

10.  There is no medical evidence in his available record that shows he was wounded as a result of hostile action while in an active duty status.

11.  A review of the Awards and Decorations Computer Assisted Retrieval System maintained by the Military Awards Branch of the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal orders for the Purple Heart pertaining to the applicant.

12.  Review of The Adjutant General's Office, Casualty Division's Vietnam casualty listing failed to show his name as a casualty.

13.  The applicant provides a letter, dated 9 March 2010, from the VA that shows he has a combined service-connected rating of 90 percent and has a disability that is service-connected for loss of or loss of use of a limb or is totally blind in or missing at least one eye.

14.  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 the Purple Heart requires the submission of substantiating evidence to verify that a Soldier received a wound/injury as the result of hostile action, the wound/injury must have required medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.

2.  There is no evidence in the applicant’s records and he has not provided any evidence that shows he was wounded or injured as a result of hostile action, that he was treated for such wounds by medical personnel, and that his treatment was made a matter of official record.  

3.  Notwithstanding the applicant's sincerity, in the absence of official orders or other documentary evidence such as operation reports or witness statements that show he was wounded as a result of hostile action and treated for those wounds; regrettably, there is insufficient evidence upon which to base award of the Purple Heart in this case.

4.  Nevertheless, this action in no way diminishes the sacrifices made by the applicant 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)                                         AR20110018986





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ABCMR Record of Proceedings (cont)                                         AR20110018986



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