IN THE CASE OF:	  

		BOARD DATE:	  15 May 2012

		DOCKET NUMBER:  AR20110022089 


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 (PH).

2.  The applicant states while serving in the Republic of Vietnam (RVN) the vehicle that he was acting as track commander in was hit on its right side by an RPG-7 (rocket propelled grenade), causing him to sustain shrapnel wounds to both his right arm and lower right leg.  Due to the unit being understrength, he did not feel his wounds were serious enough for him to be evacuated; therefore, the temporary medic treated his wounds and stated he would complete the required paperwork once they returned.  He further states he has applied to the awards branch at the Army Human Resources Command (AHRC) twice and was denied both times due to lack of official documentation.  He has also contacted the National Personnel Records Center (NPRC) requesting his records; however, they could not be located.  

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DA Form 2-1 (Personnel Qualification Record)
* Two denials from AHRC for award of the PH
* Three DA Forms 2823 (Sworn Statement)
* One typed sworn statement
* Copy of 3/5 Cavalry’s S-3 daily report
* Memoranda, correspondence and emails with AHRC, and a letter from NPRC
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 25 September 1969.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11D (Armor Reconnaissance Specialist).  

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the RVN during the period 23 January 1971 through 5 November 1971.  Item 38 (Record of Assignments) of his DA Form 20 shows during his RVN tour he was assigned to C Troop, 1/6th Armored Cavalry, performing duties in MOS 11D as an armor reconnaissance specialist.  Item 40 (Wounds) of the applicant’s DA Form 20 contains no entries.

4.  The applicant’s DD Form 214 shows he earned the following awards:

* National Defense Service Medal
* Vietnam Service Medal 
* Combat Infantryman Badge
* RVN Campaign Medal w/60 device
* One Overseas Service Bar 
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
* Expert Marksmanship Qualification Badge with Rifle Bar (M-14)
* Sharpshooter Marksmanship Badge with Hand Grenade Bar
* Bronze Star Medal

5.  He submitted three DA Forms 2823 and a written statement as follows:

	a.  A sworn statement, dated 24 June 2011, from a member of 1st Platoon, C Troop, 3/5 Cavalry who was the driver of the 12 track for which the applicant was the track commander which states he attests to the fact that the applicant was 


wounded in both his right arm and lower right leg during combat actions during Operation Lom Son 719.  He further states he saw the acting platoon medic remove pieces of shrapnel from the back of the applicant’s lower right leg and that the right arm at the elbow had already been bandaged.

	b.  A sworn statement, dated 24 June 2011, from the track commander of the 16 Track, the platoon leader’s vehicle, which states he, too, personally witnessed the acting platoon medic remove pieces of shrapnel from the back of the applicant’s right leg.

	c.  A sworn statement, dated 24 June 2011, from the Platoon Sergeant of the 1st Platoon, C Troop, 3/5 Cavalry which states they were ambushed while conducting a road security mission and at least four of the platoon vehicles were hit and they sustained a number of casualties.  He further states that he did not personally witness the applicant receive his wounds but can attest to the fact that the applicant had shrapnel removed from his right arm and lower right leg.

	d.  A written statement, dated 15 June 2009, from another member of the 1st Platoon, C Troop, 3/5 Cavalry states he, too, personally witnessed the platoon medic remove pieces of shrapnel from the back of the applicant’s right leg.

6.  He also provided copies of the 3/5 Cavalry S-3 daily report confirming that the unit did in fact receive RPG rounds and small arms fire.  However, it does not list him as being wounded.

7.  The applicant's name does not appear on the Vietnam casualty roster.

8.  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, AHRC, also failed to reveal any orders for the PH pertaining to the applicant.

9.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards policy.  Paragraph 2-8 contains guidance on the PH.  It states the PH is awarded to members wounded in action.  It also states in order to award the PH there must be evidence of the wound for which the award is being made was received as a result of enemy action, the wound required treatment by medical personnel, and a record of the medical treatment was made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for award of the PH was carefully considered and determined to lack sufficient evidence to grant relief.
2.  Notwithstanding the unit members’ statements, in order to support award of the PH the member must have been wounded in action and there must be evidence the wound for which the award is being made was received as a result of enemy action.  The member must have required medical treatment by military medical personnel and this medical treatment must have been made a matter of official record.

3.  Item 40 of the applicant's DA Form 20 does not indicate he was wounded in action.  Further, there is no entry pertaining to the applicant on the Vietnam casualty listing, the official list of RVN casualties.  

4.  The applicant's service in the RVN is not in question.  Additionally, the sincerity of the applicant is also not in question.  However, there is no evidence in the applicant's service personnel records that shows he was wounded or injured as a result of hostile action and/or treated for such wounds. The regulatory burden of proof necessary to support award of the Purple Heart has not been met; therefore, it would not be appropriate to award the applicant the Purple Heart.

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)                                         AR20110022089



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ABCMR Record of Proceedings (cont)                                         AR20110022089



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