IN THE CASE OF: 

		BOARD DATE:	  8 November 2012

		DOCKET NUMBER:  AR20120004652 


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 and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he had 6 years of honorable service. 

2.  He states:

	a.  while in Vietnam his unit came under fire and when he dove for cover, he cut a three inch gash on the left side of his head;

	b.  he was informed the mission was most important, which did not afford him the opportunity to fully report his injury;

	c.  other members of his unit were hurt, but the mission was placed before a written report;

	d.  he was not awarded the Purple Heart because his records were incorrect; 

	e.  his DD Form 214 only shows 11 days of active duty service when he actually had 6 years of active duty service; and 

	f.  he has tried to find out if Headquarters, 1st Battalion, 50th Infantry Regiment has had a reunion, but to no avail.



3.  He submitted:

* a DD Form 214
* a DD Form 215 (Correction to DD Form 214, Certification of Release or Discharge from Active Duty)
* a self-authored statement

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 enlisted in the Regular Army on 13 September 1968.

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

	a.  item 38 (Record of Assignments) he was assigned to Company B, 1st Battalion, 50th Infantry Regiment, from 17 April 1969 to 7 April 1970.

	b.  item 40 (Wounds) no entry (blank); and

	c.  item 41 (Awards and Decorations) no entry for the Purple Heart.

4.  On 24 September 1971, he was honorably released from active duty at the expiration of his term of service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining service obligation.  Item 22 (Statement of Service) is blank.  His DD Form 214 indicates he served from 13 September to 24 September 1971 for a total of 11 days of active service.  His DD Form 214 does not show award of the Purple Heart.

5.  He submitted a DD Form 214, which shows he served in the U.S. Marine Corp (USMC) from 30 June 1972 to 28 March 1975, resulting in a combined total of 5 years, 11 months, and 28 days of active duty service.

6.  His record contains a DD Form 215 (Correction to DD Form 214), dated 11 April 1983, that corrected his DD Form 214 for the period ending 24 September 1971:

	a.  item 17c (Date of Entry) from 13 September 1971 to 13 September 1968;

	b. item 22a(1) (Net Service this Service) to show 2 years, 11 months, and 28 days;

	c.  item 22a(2) (Other Service) to show 0 years, 0 months, and 0 days;

	d.  item 22a(3) (Total) to show 2 years, 11 months, and 28 days;

	e.  item 22b (Total Active Service) 2 years, 11 months, and 28 days;

	f.  item 22c (Foreign and/or Sea Service) 1 year, 0 months, and 0 days; and

	g.  item 24 (Decorations, Medals Badges, Commendations, Citations, and Campaigns Awarded or Authorized) "Combat Infantryman Badge/Nothing Follows."

7.  Review of the Awards and Decorations Computer Assisted Retrieval System maintained by the Military Awards Branch of the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders for the Purple Heart pertaining to the applicant.

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.  There are no medical records in his official military personnel file that show he was wounded as a result of hostile action in Vietnam.

10.  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 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.

11.  Title 10, U.S. Code, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

12.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to the Secretary of the Army at the following agency:  Commander, U.S. Army Human Resources Command, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  The applicant's unit must be clearly identified, along with the period of assignment and the award being recommended.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Corroborating evidence is best provided by commanders, leaders and fellow Soldiers who had personal knowledge of the circumstances and events relative to the request.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

13.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for the preparation of the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The regulation governing award of Purple Heart indicates the wound for which the award is being made must have been 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 by medical personnel, and the medical treatment must have been made a matter of official record.

2.  Regrettably, there is no evidence in the applicant's record and he provided insufficient evidence to show he was wounded as a result of hostile action.
In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief for award of the Purple Heart.

3.  While the available evidence is insufficient for awarding the applicant the Purple Heart, this in no way affects the applicant’s right to pursue his claim for the Purple Heart by submitting a request through his Member of Congress under the provisions of Title 10, U.S Code, section 1130.

4.  Evidence of record shows his DD Form 214, dated 24 September 1971, was corrected to show he served in the U.S. Army for a total of 2 years, 11 months, and 28 days.  He also submitted a DD Form 214, dated 28 March 1975, which shows he served in the USMC for an additional 3 years after his discharge from the U.S. Army.  As a result, the DD Form 214 he received from the USMC correctly shows his combined active duty service of 5 years, 11 months, and 28 days.  

5.  Therefore, he is not entitled to further correction of either DD Form 214.

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 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)                                         AR20120004652





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ABCMR Record of Proceedings (cont)                                         AR20120004652



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