BOARD DATE: 6 September 2012
DOCKET NUMBER: AR20120004586
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 that he be awarded the Purple Heart for injuries received while fighting in Vietnam.
2. The applicant states he was injured in helicopter crashes in Vietnam that injured his right shoulder and knee and both needed surgery.
3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), Physical Evaluation Board (PEB) Proceedings, and a copy of his Department of Veterans Affairs (VA) Rating Decision.
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 applicants official records were not available for review by the Board; however, the applicant has provided sufficient documents for the Board to make a fair and equitable review of his case.
3. The applicant had 7 years, 7 months, and 4 days of prior active service when he enlisted in the Regular Army on 22 June 1976. He was promoted to the pay grade of E-6 on 1 August 1980.
4. On 1 October 1982, a PEB convened at Fort Gordon, Georgia and determined that he was physically unfit for continued service because of progression longstanding post traumatic arthritic symptoms, the onset was the result of a helicopter crash in Vietnam in 1969. He was diagnosed as having degenerative arthritis of two minor joint groups, patellectomy, right, and bursitis, subdeltoid. The PEB gave him a 30% disability rating and recommended that he be permanently retired.
5. On 15 November 1982, he was permanently retired under the provisions of Army Regulation 635-40. He had served 13 years, 11 months, and 27 days of active service. His DD Form 214 issued at the time of retirement shows no award of the Purple Heart.
6. A review of the Vietnam Casualty Listing failed to show any indication of the applicant being reported as a casualty. Additionally, a search 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 orders awarding the applicant the Purple Heart. There is also no evidence to show that he sustained any or was treated for any wounds/injuries that would qualify for award of the Purple Heart.
7. Rating Decision provided by the applicant shows that he is currently receiving a 90% combined disability rating.
8. Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained 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 a medical officer, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. While the sincerity of the applicants claim that he was injured in Vietnam in a helicopter crash is not in doubt, the applicant has failed to show through the evidence submitted with his application that his injuries were the result of enemy action, the date of his injuries, and that they required medical attention at the time.
2. Therefore, in the absence of such evidence there appears to be no basis to award him the Purple Heart at this time.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__X___ __X______ ____X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ 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.
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