BOARD DATE:	  3 May 2012

		DOCKET NUMBER:  AR20110019041 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 September 1985, to show the Purple Heart (1st Oak Leaf Cluster).

2.  The applicant states his DD Form 214 does not show the second award of the Purple Heart for wounds he received on 10 May 1968 in the Republic of Vietnam (RVN).  The applicant states while checking positions in his sector his unit received indirect fire.  While running for cover a shell exploded to his rear, inflicting shrapnel wound to his left hip.  The applicant continues after the shelling, he was evacuated to Landing Zone Sally for further medical treatment.  A probe was done to remove the shrapnel but he was advised to leave it in because it would take too long to heel.

3.  The applicant states that he returned to Fort Bragg, NC, on 20 May 1968, without his medical records.  The applicant states he was treated and released with limited duty at the Womack Army Hospital.  The applicant further states he took the matter up with his Division Sergeant Major.  No action was taken, however; his medical records returned to Fort Bragg, NC with no citing of him being wounded.  The applicant continues prior to his retirement in September 1985, he went to his Group S-1 and wrote a statement but no action was taken.  He had X-rays taken of his hip and the shrapnel is still there. 




4.  The applicant provides:

* his DD Form 214
* a DA Form 2823 (Sworn Statement), 18 November 1984
* a Standard Form (SF) 600 (Chronological Record of Medical Care, dated 
* 28 November 1984
* a DA Form 4187 (Personnel Action), dated 29 November 1984
* a Department of Veteran Affairs (DVA) Disability Rating, dated 28 March 2005

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 10 September 1965 and successfully completed basic and advanced individual training.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest grade/rank he held was master sergeant (MSG)/E-8.

3.  The applicant arrived in the Republic of Vietnam (RVN) and was assigned to B Company, 2nd Battalion (Airborne), 327th Infantry, 1st Brigade, 101st Airborne Division on 19 April 1966.  

4.  Orders 807, dated 19 September 1966, issued by the 1st Brigade, 101st Airborne Division show the applicant was awarded the Purple Heart for wounds he received against hostile forces on 9 September 1966.

5.  The applicant departed the RVN on 20 April 1967.  

6.  The applicant returned to the RVN assigned to B Company, 1st Battalion, 505th Infantry, 101st Airborne Division on 13 February 1968.  On 15 May 1968, he departed the RVN.

7.  The applicant returned again to the RVN and he was assigned to Headquarter and Headquarters Company.  He departed the RVN on 5 December 1969.

8.  The applicant retired on 30 September 1985 at the rank/grade MSG/E-8 after completing 20 years and 21 Days of creditable active service.

9.  The applicant's DD Form 214 for the period ending 30 September 1985 shows he was awarded one award of the Purple Heart.

10.  There are no orders in the applicant's records that show he was awarded the Purple Heart (1st Oak Leaf Cluster).  The applicant's name is listed on the Vietnam Casualty Roster for receiving wounds on 9 September 1966.  Item 
9 (Awards, Decorations, and Campaigns) of his DA Form 2-1 (Personnel Qualification Record) does not show award of the Purple Heart (1st Oak Leaf Cluster).

11.  During the processing of this case, a member for the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the United States Army Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal award of the Purple Heart (1st Oak Leaf Cluster) on file for the applicant.

12.  The applicant provided a SF 600, dated 28 November 1984, that shows 
X-rays were taken of the applicant pelvis and revealed a metallic fragment (foreign body). 

13.  The applicant provided a DVA Disability Rating, dated 28 March 2005, that shows he was granted 10 percent service-connection disability for a shrapnel wound to his left hip with retained foreign body.

14.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, 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 by medical personnel, and the medical treatment must have been made a matter of official record.  An oak leaf cluster is authorized for wear for each additional award of the Purple Heart.





DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that the applicant was awarded the Purple Heart for wounds sustained on 9 September 1966.  This Purple Heart award is reflected on the applicant’s DD Form 214 for the period ending 30 September 1985.

2.  He provided a SF Form 600 and a DVA Disability Rating, which indicates he had a shrapnel wound to his left hip.  While the injuries to his hip are unfortunate, there is no evidence in the available records and he has not provided evidence that shows his injuries were the direct result of hostile action and those injuries were made a matter of official record. 

3.  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.

4.  Regrettably, in view of the foregoing, there is insufficient evidence that would warrant granting his request.

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)                                         AR20110019041





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ABCMR Record of Proceedings (cont)                                         AR20110019041



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