IN THE CASE OF:
BOARD DATE: 5 July 2012
DOCKET NUMBER: AR20120000074
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 he be awarded the Purple Heart.
2. The applicant states while serving in Vietnam, he came under mortar and rocket attack and was injured. He is rated 50% disabled for service-connected migraine headaches by the Department of Veterans Affairs (VA).
3. The applicant provides:
* a VA rating decision
* a DA Form 8-274 (Medical Condition Physical Profile Record), dated 22 March 1968
* a DA Form 8-274 (Medical Condition Physical Profile Record), dated 26 June 1968
* a statement, dated 11 November 1968 for replacement of government issue items lost in a 27 September 1968 mortar and rocket attack
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. The applicant was inducted into the Army of the United States for 2 years on 11 April 1967. He was trained in military occupational specialty (MOS) 51B (Carpenter). He was transferred to Vietnam and assigned to the 815th Engineer Battalion (Construction). He served in Vietnam from on or about 14 October 1967 to on or about 11 November 1968. He was honorably separated on 15 November 1968.
3. The applicant's records show the Purple Heart:
* is not listed on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* is not listed on his DA Form 20 (Enlisted Qualification Record)
* is not listed on orders in his DA Form 201 (Military Personnel Records Jacket)
4. The applicant's service medical treatment records are not available; however, he provides two DA Forms 8-274, dated 22 March and 26 June 1968, showing restricted duty for migraine headaches.
5. The applicant also provides evidence relating to a mortar and rocket attack on 27 September 1968 which states:
On or about 27 September 1968 at about 2330 hours, we came under a mortar and rocket attack. The NCO barracks where I lived took a direct hit and caught fire and burned to the ground. The only thing I saved were [sic] one suitcase and camera equipment. My uniforms and misc. clothes were burned. I was reissued just what was needed for my last few days [in country].
6. The VA in 2009 awarded the applicant a 50% disability rating for service-connected migraine headaches.
7. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he was wounded in a 27 September 1968 mortar and rocket attack in Vietnam. He implies his 50% VA disability rating for migraines is attributed to this mortar and rocket attack. However, the applicant was on a restricted duty profile as early as 22 March 1968 for migraine headaches; the mortar and rocket attack did not cause his migraines.
2. The applicant's records contain no evidence he was wounded in action or awarded 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) AR20120000074
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ABCMR Record of Proceedings (cont) AR20120000074
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