BOARD DATE:	  4 September 2012

		DOCKET NUMBER:  AR20120004024 


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 correction of his medical record to show he was treated for wounds received as a result of hostile action in the Republic of Vietnam (RVN) on 22 March 1967.

2.  The applicant states his Army medical record is blank from 10 November 1965 to 5 September 1967.  He has been working on this issue from the time he found out his medical record was blank.

3.  The applicant provides:

* four self-authored letters
* four support letters
* a Portland, OR, Department of Veterans Affairs Medical Center (VAMC) medical examination document, dated 13 January 2003

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
10 November 1965.  He was awarded military occupational specialty 11B (light weapons infantryman).

3.  His DA Form 20 (Enlisted Qualification Record) shows in:

	a.  item 31 (Foreign Service):  Vietnam service 15 September 1966 through
31 August 1967;

	b.  item 38 (Record of Assignments):  Company A, 1st Battalion, 8th Infantry, 4th Infantry Division, from 15 September 1966 through 31 August 1967;

	c.  item 40 (Wounds):  no entry (blank); and

	d.  item 41 (Awards and Decorations):  no listing for the Purple Heart.

4.  A Standard Form (SF) 89 (Report of Medical History), dated 5 September 1967, completed by the applicant for the purpose of his separation medical examination, does not show an entry for an injury to his arm or shoulder.

	a.  Item 33 (Have You Ever Had Any Illness or Injury Other Than Those Already Noted?), shows the applicant placed an "X" in the column titled "No"; and

	b.  The applicant placed his signature on the form stating, "I certify that I have reviewed the foregoing information supplied by me and that it is true and complete to the best of my knowledge."

5.  An SF 88 (Report of Medical Examination), dated 5 September 1967, completed by a captain serving as a physician in the Medical Corps shows in:

	a.  the "Clinical Evaluation" section:

* item 35 (Upper Extremities) - "Normal"
* item 39 (Identifying Body Marks, Scars, Tattoos) - "Abnormal" and the note, "Scar Face"
	b.  the examining physician indicated the applicant was qualified for separation and placed his signature on the form.

6.  On 5 September 1967, the applicant 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 Reserve obligation.  He completed 1 year, 9 months, and 26 days of total active service that included 11 months and 20 days of foreign service.  It does not show he was awarded the Purple Heart.

7.  There are no orders or other evidence in the applicant's military personnel record and he did not provide any evidence that shows he was awarded the Purple Heart for wounds received on 22 March 1967.

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

9.  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.

10.  A VA Form 07-3101 (Request for Information), dated 27 December 1967, shows a VA official requested from the U.S. Army all available medical and clinical records pertaining to the applicant.  It also shows the applicant's health records were forwarded to the VA Regional Office (VARO), Portland, OR, on
23 January 1968.

11.  ABCMR Record of Proceedings, Docket Number AR20080002462, dated
29 May 2008, shows the applicant's request for award of the Purple Heart based on being wounded in the RVN on 22 March 1967 was denied.  In support of his request he provided copies of two letters from the applicant to his parents, dated 24 March "1966" and 16 April 1967, and two "buddy statements" from (then) First Sergeant (1SG) David H. M------y, undated, and (then) Sergeant Theodore E.    S-----z, dated 30 September 2007.

12.  ABCMR Record of Proceedings, Docket Number AR20080014522, dated
15 January 2009, shows the applicant's request for reconsideration for award of the Purple Heart based on being wounded in the RVN on 22 March 1967 was returned without action because the applicant did not provide any new evidence or argument with the reconsideration request.


13.  In support of this application, the applicant provides:

	a.  an undated letter to Command Sergeant Major (CSM) Dan D---y,
4th Infantry Division, from Lieutenant Colonel (LTC) Richard L. S---r, U.S. Army (Retired), wherein he certifies the applicant was wounded during hostile action with an enemy force on 22 March 1967.  He states at the time he was serving as the applicant's platoon leader.  They were conducting combat operations in the Republic of Vietnam when the unit became engaged with a hostile force and the applicant incurred wounds to the right shoulder, elbow, and right rib cage area.  He observed these wounds that were the result of hostile action.  The applicant was evacuated to the Battalion Aid Station for treatment of these wounds.  He adds it has come to his attention the applicant was not awarded the Purple Heart and it would be appropriate to award him the Purple Heart for wounds received during this hostile action;

	b.  an undated letter to CSM Dan D---y from 1SG David H. M------y, U.S. Army (Retired), Medal of Honor recipient, wherein he certifies the applicant was wounded during hostile action with an enemy force on 22 March 1967.  He states at the time he was serving as the applicant's 1SG.  The remainder of the 1SG's statement is identical to that of LTC S---r;

	c.  an undated letter from Mr. James D. A---n who states he was a combat medic and attached to the applicant's unit at the time the applicant was wounded during hostile action on 22 March 1967.  He remembers treating the applicant for his wounds before he was evacuated for additional medical care;

	d.  a letter from (then) SGT Theodore E. S-----z, dated 30 September 2007, who states he served with the applicant when he incurred minor wounds during hostile action on 22 March 1967.  He also states, "… since all non-seriously wounded troops were needed in the field, he (the applicant) did not receive treatment until the unit returned to a fire base camp.  Thus, his wounds were not on the WIA (wounded in action) list….";

	e.  two letters from the applicant to his parents, dated 24 March "1966" and 16 April 1967.  The letter dated 24 March 1966 (emphasis added) states, in pertinent part, "I am all right.  I am back in the forward base camp now.  I got a small piece of shrapnel in my arm just below my shoulder."  In the second letter, the applicant writes, "They was (sic) going to leave the shrapnel in my arm but it is starting to swell up and get infected so I think they are going to cut it out tomorrow.";


	f.  two letters from the applicant, one dated 19 January 2001 and other undated, wherein he recounts being wounded in action on 22 March 1967 and offers a summary of his efforts to establish his entitlement to the Purple Heart; and

	g.  a Portland, OR, VAMC medical record, dated 13 January 2003, for a right shoulder procedure that shows "there is a piece of shrapnel in the soft tissues of the right upper arm…."

14.  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.  The regulation provides that 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.  The applicant contends his medical record should be corrected to show he was treated for wounds received as a result of hostile action in the Republic of Vietnam on 22 March 1967.

2.  The applicant's contentions and the evidence he provides in support of his request were carefully considered.

	a.  The sincerity of the comments in the letters that the applicant submits in support of his application is not in question.

		(1)  The two letters he wrote to his parents do not offer any evidence regarding the specifics of the wound the applicant sustained or that he received medical treatment for the wound.

		(2)  The two letters he provides from the former medic and Soldier (one of which was provided in his previous request for award of the Purple Heart) do not offer any evidence regarding the specifics of the wound the applicant sustained on 22 March 1967.  In addition, one letter indicates the applicant received medical treatment in the field while the other letter indicates he did not.  Thus, the letters provide contradictory evidence regarding the issue under review.

		(3)  The two letters he now provides with this request (from his former platoon leader and first sergeant) are verbatim in their content, indicating that they were either written in collaboration or that the information was provided to them as templates for their letters.  This calls into question the evidentiary value of the letters.

	b.  Thus, it is clear that the letters provide insufficient evidence to support the applicant's request to have an entry made in his medical records to show he received treatment for a wound on 22 March 1967.

3.  The evidence of record shows the applicant's military personnel records are void of any evidence that he was wounded in action on 22 March 1967.  In addition, his name is not listed on the Vietnam casualty listing and there is no evidence the applicant was awarded the Purple Heart.

4.  The evidence of record shows the applicant's Army medical records were forwarded to the VARO in Portland, Oregon in 1968.  Thus, they are not available for review.  Although he states "I found out my medical records were blank," it is not clear whether or not he has asked the VARO in Portland, OR for his service medical records and he does not provide a copy of any Army treatment records.

5.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  The applicant fails to provide such evidence.  As a result, the applicant's U.S. Army military service records are presumed to be correct with respect to the subject matter under review.

6.  In view of all of the foregoing, there is no basis for granting the applicant's 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)                                         AR20120004024



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ABCMR Record of Proceedings (cont)                                         AR20120004024



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