BOARD DATE: 26 April 2012
DOCKET NUMBER: AR20110020633
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. He states while serving in Vietnam, he was firing a .50 caliber machine gun because enemy forces had been observed in the area of operation. The machine gun jammed and the ammunition started exploding inside the weapon. As a result, he suffered fragment wounds to both his thighs and was medically evacuated to a military hospital in Saigon where he received medical treatment.
3. He adds that his records clearly show he served in Vietnam and was injured while serving there. He has been unable to find any records to completely substantiate his claim. However, he knows what happened and hopefully the Board can obtain evidence to clear up any discrepancies and award him the Purple Heart.
4. The applicant provides documents from his military medical record.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. He was inducted in the Army on 16 May 1966. Upon completion of training, he served in military occupational specialty 13A (Field Artillery).
3. His DA Form 20 (Enlisted Qualification Record) shows:
* item 31 (Foreign Service) he served in Vietnam from 20 October 1966 to 17 October 1967
* item 40 (Wounds) no entry
* item 41 (Awards and Decorations) no award of the Purple Heart
4. The applicant provided copies of the following medical documents, which are all dated subsequent to his return from Vietnam. These forms show he sustained shrapnel injuries to both legs which had caused him pain since his return from Vietnam. None of the documents show his injuries were a result of hostile action:
* A Standard Form (SF) 600 (Chronological Record of Medical Care)
* A DA Form 8-274 (Medical Condition Physical Profile Record)
* An SF 88 (Report of Medical Examination)
* An SF 89 (Report of Medical History)
5. On 15 May 1968, he was honorably released from active duty. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 2 years of active duty service and 11 months and 28 days of foreign service in Vietnam.
6. The applicant's name does not appear on the Vietnam casualty roster.
7. A review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any orders awarding him the Purple Heart.
8. Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained in action against an enemy or as a result of hostile action. Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required medical treatment, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. His request for correction of his records to show award of the Purple Heart was carefully considered; however, it is not supported by the available evidence of record.
2. By regulation, it is necessary to establish that a Soldier was wounded as a result of hostile action, the wound required treatment by medical personnel, and the medical treatment of the wound must have been made a matter of official record in order to award the Purple Heart.
3. While he provides documents from his military medical record which show he suffered injuries to both legs while serving in Vietnam, he has not provided sufficient medical evidence which shows his injuries were a result of hostile action.
4. The veracity of the applicants claim that he sustained fragment wounds to both thighs while firing a .50 caliber machine gun is not in question. However, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case in that the enemy did not cause the malfunction..
5. As such, there is insufficient evidence to grant the requested relief.
6. The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by him 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) AR20110020633
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ABCMR Record of Proceedings (cont) AR20110020633
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