IN THE CASE OF:	  

		BOARD DATE:	  10 April 2012

		DOCKET NUMBER:  AR20110020295 


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 military records to show award of the Purple Heart.

2.  The applicant states he was never issued the Purple Heart for the shell fragment wound he received during his service in the Republic of Vietnam (RVN). He states his unit was caught in a horseshoe shaped ambush.  He was in the middle row of the patrol positioned second behind the point man.  A rocket hit close to him sending shrapnel into his thorax.  The force of the impact sent him into a somersault (a forward or backward roll returning to an upright position).  The medic just wrapped the wound and he was evacuated to a field hospital.  He was treated a couple of weeks and reported back to his unit.  He was told he would receive the Purple Heart.  He was hurt in late June or early July 1969 and transferred out of the RVN at the end of January 1970.

3.  The applicant provides copies of his DD Form 214 and his Department of Veterans Affairs (VA) Rating Decision, dated 19 November 2010.

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.  Evidence of record and background information:

	a.  On 19 September 1968, the applicant was inducted into the Army of the United States.  He completed his initial training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

	b.  On 7 February 1969, the applicant departed Fort Polk, Louisiana for duty in the RVN.

	c.  The applicant was assigned in the RVN from:

* 22 February to 9 October 1969 as a rifleman/automatic rifleman with Company B, 2nd Battalion, 5th Cavalry Regiment, 1st Cavalry Division
* 10 October 1969 to 7 February 1970 as an automatic rifleman with 2nd Brigade, 1st Air Cavalry Division

	d.  The applicant departed the RVN on or about 7 February 1970 for duty at Fort Jackson, South Carolina, where he was an instructor.

	e.  On 2 October 1970, the applicant was released from active duty.  He had attained the rank of specialist four, pay grade E-4 and had completed 1 year, 
11 months, and 29 days of creditable active duty service.

	f.  The applicant's DD Form 214 indicates he was awarded:

* National Defense Service Medal
* Marksman Marksmanship Qualification Badge with Rifle (M-14/M-16) Bar
* 1st Class Gunner (Sharpshooter) Marksmanship Qualification Badge with Machinegun Bar
* Vietnam Service Medal
* Combat Infantryman Badge
* Vietnam Campaign Medal with 1960 Device
* RVN Gallantry Cross with Palm Unit Citation
* Air Medal


3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows:

	a.  in Item 38 (Record of Assignments): there is no entry indicating he was a patient;

	b.  in Item 40 (Wounds): there is no entry indicating he was wounded in action; and

	c.  in Item 41 (Awards and Decorations): the entries indicate the same awards as listed on his DD Form 214.

4.  Except for the applicant's separation medical examination, his service medical records are not available for review.

	a.  Standard Form 88 (Report of Medical Examination) dated 29 July 1970, states he had a scar on his upper lip.  He stated he was in good health.  There is no indication on the report that he had been wounded, had a scar on the left side of his thorax, or still retained shrapnel in his thorax.  He was found qualified for separation.

	b.  Standard Form 89 (Report of Medical History) dated 29 July 1970, shows the applicant checked "NO" in item 33 (Have you ever had any illness or injury other than those already noted.)  The physician stamped on the form that there were no significant medical problems while on active duty.

5.  The applicant’s name is not listed on the Vietnam Casualty Roster.

6.  A review of the Awards and Decorations Computer Assisted Retrieval System (ADCARS) failed to reveal any orders awarding the applicant the Purple Heart.  ADCARS is 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.

7.  Army Regulation 600-8-22 (Military Awards) provides for award of the Purple Heart to a member of the Armed Force who, while serving in any capacity with one of the U.S. Armed Services after 5 April 1917, has been wounded or killed, or who has died or may die after being wounded in any action against an enemy of the U.S.  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.


8.  The VA rating decision provided by the applicant indicates that the VA has granted him a service-connected, Vietnam Era, incurred-combat static disability for a shrapnel fragment wound to the left side of his thorax with a scar and shrapnel retention.  He was awarded zero percent disability effective 21 June 2010.  The rating decision indicates that the applicant's service treatment records for service from September 1968 through October 1970 were a part of the evidence used as a basis for the VA decision.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his military records should be corrected to show award of the Purple Heart because he was wounded while on patrol in the RVN.

2.  There are no available general orders awarding the applicant the Purple Heart.  The Vietnam Casualty Roster does not contain the applicant's name.  The applicant's DA Form 20 does not indicate he received any wounds while in action or that he had been in a patient status at any time.

3.  The available medical evidence clearly shows that at the time of the applicant's separation from active duty he did not claim nor did the physician make note of any scar on the left side of the applicant's thorax.  Furthermore, the applicant clearly noted in his medical history statement that he had no injuries other than those already mentioned.  None were mentioned at the time of separation.

4.  The VA rating decision indicates that it used the applicant's service medical records for the period 1968 to 1970 in making its service-connected disability determination.  However, those service medical records are not available for review, and the VA Rating Decision does not include any details of what those service medical records show.

5.  In view of the above, the applicant's request for award of the Purple Heart 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.




      _______ _   _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)                                         AR20110020295



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ABCMR Record of Proceedings (cont)                                         AR20110020295



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