IN THE CASE OF:	  

		BOARD DATE:	  24 May 2011

		DOCKET NUMBER:  AR20100026572


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 riding in a tank on 19 August 1969 which struck a mine.  He claims he hurt his back and "was cut and bruised pretty badly."  He adds he was submitted for the Purple Heart, but he did not receive it.

3.  The applicant provides:

* a 6 March 2002 self-authored letter
* a 14 September 2001 Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) written by a former comrade-in-arms
* a 21 November 2007 letter from a medical doctor

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 for 2 years on 6 March 1969.  He completed basic combat training at Fort Bliss, TX, and advanced individual training at Fort Ord, CA.  He was awarded military occupational specialty 11C (Indirect Fire Infantryman) and was transferred to Vietnam on or about 12 July 1969.

3.  The applicant arrived in Vietnam on or about 28 July 1969 and he was assigned to Troop B, 1st Squadron, 4th Cavalry, 1st Infantry Division, for duty as an ammunition bearer on or about 8 August 1969.  On or about 31 March 1970, he was reassigned to the 23rd Infantry Division and Company D, 3rd Battalion, 1st Infantry, 11th Infantry Brigade, for duty as an assistant gunner.

4.  The applicant's service medical records are not available for review.  There is documentation which suggests his service medical records were loaned to the VA Phoenix Regional Office.

5.  The applicant's DA Form 201 (Military Personnel Records Jacket (MPRJ)) does not contain orders awarding him the Purple Heart.  However, it does contain numerous orders issued by the applicant's Vietnam units of assignment awarding him the:

* Bronze Star Medal
* Bronze Star Medal with Oak Leaf Cluster
* Army Commendation Medal
* Army Commendation Medal with Oak Leaf Cluster
* Combat Infantryman Badge

6.  The applicant's MPRJ does contain a DA Form 20 (Enlisted Qualification Record).  This document shows the following entry in block 40 (Wounds):  "PULLED MUSCLES IN BACK – 29 AUG 69."  The DA Form 20 does not list the Purple Heart in block 41 (Awards and Decorations).

7.  The applicant's name appears on the Vietnam casualty roster indicating he was "battle wounded" on 26 August 1969.  His wound was not serious and did not require hospitalization.

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 of the U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant.

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 treatment by medical personnel, and the medical treatment must have been made a matter of official record.  The regulation also states that when contemplating an award of the Purple Heart the key issue commanders must take into consideration is the degree to which the enemy caused the injury.

10.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) stated the authority to award the Purple Heart was delegated to hospital commanders.  It directed that all personnel treated and released within 24 hours would be awarded the Purple Heart by the organization to which the individual was assigned.  Personnel requiring hospitalization in excess of 24 hours or evacuation from Vietnam would be awarded the Purple Heart directly by the hospital commander rendering treatment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests award of the Purple Heart.

2.  The evidence supporting approval of the applicant's request includes:

* his statement and the statement of his former comrade
* block 40 of his DA Form 20
* the Vietnam Casualty Roster

3.  The evidence supporting denial of the applicant's request includes:

* no medical records providing details of his wounding
* no orders in his MPRJ awarding him the Purple Heart
* no Purple Heart orders in ADCARS
* the discrepancy in the date of wounding between applicant's statements and his DA Form 20

4.  The applicant's DA Form 20 records "pulled back muscles" as the extent of his wound.  While this description would, under the proper circumstances, justify award of the Purple Heart, there is no official description of the event that caused his pulled back muscles.  Further, the applicant's units of assignment in Vietnam demonstrated conscientiousness and diligence in publishing orders awarding him multiple Bronze Star Medals and Army Commendation Medals and a Combat Infantryman Badge, but his unit(s) did not look after his award of a Purple Heart.  Given his injury (pulled muscle), it is possible his commanders took into consideration the degree to which the enemy caused his injury and made a conscious decision not to award the Purple Heart.

5.  There is insufficient evidence to warrant award of the Purple Heart in this case.  Without the applicant's service medical records to lend clarification surrounding the events of 26 August 1969 (or 19 August as the applicant and his witness indicate), there simply is not sufficient credible evidence to overcome reasonable doubt in favor of the applicant.  If, however, he has a complete copy of his service medical records or knows where they may be located, e.g., at a VA regional office or at a Reserve or National Guard unit which he may have joined, he may resubmit his application along with those records and ask that his case be reopened.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONSCLUSIONS above, the Board believed that there was sufficient evidence to show the applicant met the criteria for award of the Purple Heart.

2.  The Board noted that the applicant's name was listed on the Vietnam Casualty Roster as being wounded in battle.  The analyst's conclusion concerning his commander's action (or lack of action) in regard to the Purple Heart and his other awards is conjecture and not sufficient to deny the applicant the requested relief.

3.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by awarding him the Purple Heart for 


wounds received on 19 August 1969 and by adding the Purple Heart to his      DD Form 214.




      ___________XXX___________
                 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)                                         AR20100026572



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ABCMR Record of Proceedings (cont)                                         AR20100026572



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