BOARD DATE:	  31 May 2012

		DOCKET NUMBER:  AR20110022411 


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, in effect, award of the Purple Heart.

2.  The applicant states he remembers he was hurt in Vietnam in January 1969 or January 1970.  He has a piece of metal in his spine based on x-rays at the Department of Veterans Affairs (VA) hospital.  He further states he has never been shot at since he's been out of the Army and that Vietnam is the only place he could have gotten it.

3.  The applicant provides:

* an undated letter from the VA Medical Center, Dayton, OH
* a witness letter from E--- K---------, dated 15 March 2007
* a witness statement from W------ F. D--------, dated 20 March 2007
* an undated witness statement from P------ B. C----
* an undated witness statement from C------ R. S------

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 was inducted into the Army of the United States on 16 July 1968.  He completed training and he was awarded military occupational specialty 11B (light weapons infantryman).

3.  He served in Vietnam from 9 January 1969 to 28 February 1970 while assigned to Company B, 4th Battalion, 21st Infantry Regiment, 11th Infantry Brigade.

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

5.  On 3 March 1970, he was honorably released from active duty as an overseas returnee and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining service obligation.  He completed 1 year, 7 months, and 3 days of total active service.

6.  The applicant's medical records are not contained in the available records.  Administrative documents in the applicant's military personnel file indicates his medical records were transferred to the VA in October 1970.

7.  Review of The Adjutant General's Office, Casualty Division's Vietnam casualty listing does not show the applicant's name as a casualty.

8.  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 for the Purple Heart pertaining to the applicant.

9.  The applicant provides a VA Medical Center letter that shows he was examined on 13 October 2011.  The letter reports:

Soft tissues of the neck done on 10/13/2011:  A small 2 mm size density is projected over the angle of the mandible in the lateral view.  I am unable to localizing [sic] in the frontal view.  I think it could represent shrapnel an [sic] foreign body.  In the cervical spine series it is seen in the left.


10.  The applicant provides four witness statements, two dated in 2007 and two undated.

	a.  E--- K---------- states he and the applicant served in Vietnam when his injury occurred.  While on combat patrol the lead point-man triggered an explosive device that severely wounded him (the writer) and injured the applicant.  He states the applicant was dazed and scratched up but did not think he was badly injured.  He further states after caring for the seriously injured point-man the applicant was treated by the field medic for what seemed to be cuts, abrasions, and minor shrapnel wounds.

	b.  W------ F. D-------- states he suffered the traumatic amputation of his left arm due to an enemy booby-trap.  While on combat patrol in January 1970 an enemy booby-trap exploded seriously injuring their point-man.  The applicant was dazed and bleeding from several cuts from the force of the explosion.  The applicant was patched up by their combat medic and stayed with his platoon in the field.

	c.  P------ B. C---- states he served proudly alongside of the applicant in Vietnam.  During a patrol, the lead point-man triggered a booby-trapped explosive device severely wounding him (the point man), and as they know now, sent a piece of shrapnel into the applicant's upper spinal area.  The applicant was covered with debris, but he did not seem badly injured.  The applicant stated he was not injured sufficiently enough to leave the field.

	d.  C------ T. S------ states that in January 1970 the applicant was hit.  He states the applicant was hit three times since July that he knew about.  The applicant was injured but he would not go and get checked out by the medic.  

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.

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


DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record and the applicant did not provide any evidence that conclusively shows he was injured as a result of hostile action and treated for that injury.  The supporting statements by the applicant's fellow Soldiers indicate he was injured as a result of a tripped booby trap and that three of the four letters indicate he was treated by the unit medic.  However, there is no evidence of such medical treatment in his military record, which is a requisite for consideration for award of the Purple Heart.

2.  In view of the foregoing there is an insufficient evidentiary basis for granting the applicant's requested relief.

3.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant 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)                                         AR20110022411



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ABCMR Record of Proceedings (cont)                                         AR20110022411



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