BOARD DATE: 7 June 2012
DOCKET NUMBER: AR20110022904
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. He states he would like his status changed from noncombat casualty to combat casualty, so that he may be considered for the Purple Heart. His unit was under fire when he fell 17 feet and had to be medically evacuated on
21 December 1967.
3. He listed his Department of Veterans Affairs (VA) claim number along with his social security number for the Board to obtain necessary records in support of his request.
4. He did not provide any additional documentation.
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 appointed a second lieutenant in the U.S. Army Reserve (USAR) on
3 October 1961 and entered active duty that date. After the completion of training, he served as a Field Artillery Unit Commander.
3. Item 17 (Foreign Service) of his DA Form 66 (Officer Qualification Record) shows, in part, he served in Vietnam during two periods:
* From 20 July 1967 through 14 January 1968
* From 21 December 1969 through 14 December 1970
4. The applicant's DA Form 66 also shows him in a patient status from
30 December 1967 to 24 March 1968 in item 18 (Record of Assignments).
5. His record does not contain any documentation to show he was recommended for award of the Purple Heart.
6. The applicant's name does not appear on the Vietnam casualty roster nor does his military personnel record contain any documentation to show he was injured in combat, as a result of hostile action.
7. His military medical record is not available for review.
8. 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.
9. 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.
10. 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. Paragraph 2-2 outlines the functions of the ABCMR. It states that the ABCMR will decide cases on the evidence of record. It is not an investigative body. Paragraph 2-9 contains guidance on the burden of proof. It states 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.
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. The applicant did not provide any evidence and his record is void of documentation to support his request. As a result, the regulatory burden of proof necessary to support award of the Purple Heart has not been satisfied in this case. Additionally, the applicant's name does not appear on the Vietnam casualty roster.
4. By regulation the ABCMR begins it consideration of each case with a presumption of regularity. The burden of proving otherwise rests with the applicant. Further, the ABCMR is not an investigative body and considers cases based on the evidence and records that are provided. If the applicant has copies of his military medical records, VA medical records, or any other records or documents that pertain to the issue, he may resubmit his application for reconsideration.
5. In the absence of such evidence, there is an insufficient basis on which to grant the requested relief.
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) AR20110022904
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ABCMR Record of Proceedings (cont) AR20110022904
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