IN THE CASE OF:	 

		BOARD DATE:	  24 April 2012

		DOCKET NUMBER:  AR20110021441 


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  The applicant states he was awarded the Purple Heart and then it was revoked.  He was wounded in Vietnam.  He has a scar on his head showing the evidence.  He was hit with some type of metal object in Saigon, South Vietnam.

3.  The applicant provides:

* orders awarding him the Purple Heart
* orders revoking the Purple Heart

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.  He was inducted into the Army of the United States on 1 May 1968.  He completed basic combat and advanced individual training and was awarded military occupational specialty 12B (Combat Engineer).

3.  He was assigned to Company B, 35th Engineer Battalion in the Republic of Vietnam from 17 October 1968 to 10 October 1969.

4.  Headquarters, 24th Evacuation Hospital General Orders Number 112, dated 14 May 1969, announced the award of the Purple Heart for a list of eight Soldiers.  The orders listed the applicant as having received a wound as a result of hostile action on 14 May 1969.

5.  Headquarters, 24th Evacuation Hospital General Orders Number 145, dated 24 June 1969, revoked that portion of their General Orders Number 112, dated 14 May 1969, pertaining to awarding the applicant a Purple Heart.

6.  On 1 May 1970, he was released from active duty.  He completed 2 years of active service that was characterized as honorable.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) does not show he was awarded the Purple Heart.

7.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) is blank.

8.  Item 41 (Awards and Decorations) of his DA Form 20 does not show award of the Purple Heart.

9.  His service medical records were not available for review.  His name does not appear on the Vietnam casualty listing.

10.  A review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), 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, failed to reveal any orders awarding him the Purple Heart.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.


12.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9, of the version in effect at the time, stated that a brief description of wounds or injuries (including injury from gas) requiring medical treatment that were received through hostile or enemy action, including those requiring hospitalization, would be entered in item 40 of the DA Form 20.

13.  Army Regulation 672-5-1 (Military Awards), then in effect, provided that the Purple Heart was awarded to any member of an Armed Force or any civilian national of the United States who while serving under competent authority in any capacity with one of the U.S. Armed Services had been wounded, killed, or who had died as a result of 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.

DISCUSSION AND CONCLUSIONS:

1.  The 24th Evacuation Hospital issued orders that included the applicant on the list for Soldiers being awarded the Purple Heart.  However, the following month the portion of these orders awarding him the Purple Heart were revoked.  There was no reason given for the revocation.  Therefore, without evidence to the contrary, it must be presumed that what the Army did was correct.

2.  His DA Form 20 contains no entries showing he was wounded as a result of hostile action or that he was awarded the Purple Heart.  There are no orders in ADCARS awarding him the Purple Heart and the Vietnam casualty listing does not list him as a casualty.  His service medical records were not available for review.

3.  Therefore, in the absence of evidence showing he was wounded as result of hostile action, the wound required treatment by medical personnel, and the medical treatment was made a matter of official record there is an insufficient basis to award the Purple Heart in this case.

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)                                         AR20110021441



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ABCMR Record of Proceedings (cont)                                         AR20110021441



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