IN THE CASE OF:	  

		BOARD DATE:	  13 October 2011

		DOCKET NUMBER:  AR20110019488 


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 retroactive to 5 June 1965.

2.  The applicant states:

* he was denied the Purple Heart by the Army Awards Branch
* the Awards Branch denied his request because they said he did not have sufficient proof
* shrapnel is still in his right leg from a wound he received in Vietnam in 1965
* the Army Awards Branch did not consider the special and unusual circumstances of his case
* the shrapnel in his leg was not discovered until his leg was x-rayed on 4 May 2009 at the orthopedic clinic where he was being seen as a patient
* a doctor at the Department of Veterans Affairs (VA) has verified the metal is indeed shrapnel and enemy action was the only way the shrapnel could have entered his leg
* he thought he had only been injured and was not aware that the shrapnel had entered his leg

3.  The applicant provides:

* a letter from his Senate Representative dated 6 September 2011
* Privacy Act Release
* a letter to his Senate Representative dated 21 August 2011
* a letter to the Military Awards Branch dated 16 August 2011
* a copy of an x-ray
* a List of Contents for the Purple Heart Packet he prepared for his Senate Representative

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 Army on 10 August 1960.  He completed training as a heavy weapons infantryman.  He was discharged on 9 October 1963 at the expiration of his term of service (ETS).  He completed 3 years and 2 months of net active service this period.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he received shows he was awarded the Army Good Conduct Medal and the Parachutist Badge.

3.  He immediately reenlisted in the Army on 10 October 1963.  After completing 3 years of net active service this period, he was honorably discharged at his ETS on 9 October 1966.  The DD Form 214 he received shows the following awards:

* Parachutist Badge
* Army Good Conduct Medal
* Combat Medical Badge
* Armed Forces Expeditionary Medal
* Vietnam Service Medal
* Air Medal
* National Defense Service Medal

4.  Item 27 (Wounds Received as a Result of Action with Enemy Forces) on his DD Form 214 also shows "None."

5.  The applicant immediately reenlisted in the Army on 10 October 1966.  He was discharged on 3 August 1967 to accept a commission as an officer in the Army.  He completed 9 months and 24 days of net active service this period.  The DD Form 214 he received shows he was awarded:

* National Defense Service Medal
* Army Good Conduct Medal with Bronze Clasp with 2 Loops
* Marksman Marksmanship Qualification Badge (Rifle M-14)

6.  On 4 August 1967, the applicant accepted a commission in the rank of second lieutenant.  He was promoted through the ranks to colonel on 1 February 1990.  He retired on 31 October 1996.  He completed 29 years, 2 months, and 27 days of net active service this period.  The DD Form 214 he received shows the following awards:

* Defense Superior Service Medal
* Legion of Merit (3rd Award)
* Bronze Star Medal (3rd Award)
* Bronze Star Medal with "V" Device
* Meritorious Service Medal (3rd Award)
* Air Medal
* Army Commendation Medal (3rd Award)
* Army Good Conduct Medal (2nd Award)
* National Defense Service Medal with bronze service star
* Vietnam Service Medal with five bronze service stars
* Southwest Asia Service Medal with bronze service star
* Army Service Ribbon
* Overseas Service Ribbon
* Republic of Vietnam Campaign Medal with Device (1960)
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Combat Infantryman Badge
* Combat Medical Badge
* Master Parachutist Badge
* Pathfinder Badge
* Ranger Tab

7.  There is no evidence in the applicant’s official military record that shows he was wounded as a result of enemy action while he was in the Army.

8.  The applicant's name is not shown on the Vietnam Casualty Listing as a battle casualty.

9.  The applicant submits a copy of his petition to the U.S. Army Human Resources Command (AHRC) Awards Branch dated 22 September 2009, in which he requested to be awarded the Purple Heart.  AHRC denied his request on 30 December 2009.

10.  The applicant submits a letter from the Chief, Medical Officer, VA Outpatient Clinic, Mobile, AL, to the Military Awards Branch dated 16 August 2011.  The Chief, Medical Officer states he reviewed the applicant’s military and civilian health records and there is no doubt in his mind that the metallic fragment seen on the x-ray of the applicant’s lower right leg is shrapnel and of a bullet fragment. He states as a former field combat surgeon in the U.S. Army he believes he more than qualifies as an expert regarding the type of injury.  He states a review of the applicant’s health record shows no injuries or accidents that could account for the fragment other than that suffered as a result of a wound received in combat years ago.  He states that combat medics throughout history from World War II have commonly treated wounds without signing out to a physician and, unfortunately, many Soldiers and Sailors thus treated were never recognized as Purple Heart recipients.  He states he believes the applicant should be recognized.

11.  Army Regulation 600-8-22 (Military Awards) states 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 applicant's contentions have been noted.  His supporting evidence to include the letter from the Chief, Medical Officer, VA Outpatient Clinic, Mobile, AL, has been carefully considered.

2.  There is no evidence in his official record showing he was wounded as a result of hostile action by enemy forces.  His name is not show on the Vietnam Casualty Listing as a battle casualty.  Item 27 on the DD Form 214 that he received during the period of service he contends he was wounded shows "None."

3.  The applicant himself stated he was not aware the shrapnel had entered his leg.  This indicates the injury was so minor that no medical treatment for it was needed.  This is borne out by the fact that there is no evidence in his official military record showing he was wounded as a result of hostile action, that the wound he says he received required treatment by medical personnel, and that the treatment was made a matter of official record, all criteria required to be met before the Purple Heart can be awarded.

4.  In the absence of evidence that shows all the eligibility criteria for award of the Purple Heart was met, it must be presumed that what the Army did in his case was correct.

5.  In view of the foregoing, the applicant's request should be denied.

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.




      _______ _   XXX   ____   ___
               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)                                         AR20110019488





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ABCMR Record of Proceedings (cont)                                         AR20110019488



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