IN THE CASE OF:	  

		BOARD DATE:	  6 September 2012

		DOCKET NUMBER:  AR20120004878 


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 this award.

2.  The applicant states that he was wounded in Vietnam in March 1971 during Dewey Canyon II and Lan Som 719.  He goes on to state he was ambushed with rocket propelled grenades (RPGs) and small arms fire.  He also states he received shrapnel wounds and a ruptured ear drum due to the attack and he never received the Purple Heart.

3.  The applicant provides statements from two former members of his unit.

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 (RA) in Des Moines, IA on 16 June 1969 for a period of 3 years.  He completed his basic combat training at Fort Polk, LA and his advanced individual training at Fort Leonard Wood, MO where he was awarded military occupational specialty 62M (rough terrain forklift and loader operator).  On 23 October 1969, he departed the United States en route to Vietnam.

3.  During his tour of duty in Vietnam he was assigned to:

* Company D, 14th Engineer Battalion from 21 November 1969 through 
3 August 1971 as a loader operator
* Company D, 27th Engineer Battalion from 4 August through 9 November 1971 as a loader operator

4.  On 10 November 1971, he was transferred to the Medical Holding Company, U.S. Army Hospital, Camp Zama, Japan in a patient status.  He remained in Japan until he was transferred back to Vietnam and reassigned to Headquarters and Headquarters Company, 92nd Engineer Battalion as a driver from
26 December 1971 through 9 January 1972, at which time he departed Vietnam en route to the United States for separation processing.

5.  On 15 January 1972, he was honorably released from active duty at Oakland Army Base, CA as an overseas returnee.  He completed 2 years and 7 months of total active service.  The DD Form 214 he was issued at the time does not show the Purple Heart.

6.  There is no evidence of record and the applicant failed to provide any evidence that shows he was wounded as a result of hostile enemy action while in Vietnam.  Additionally, the applicant's separation medical/physical examination does not indicate any wounds or injuries.

7.  It appears the two statements from former members of his unit were prepared in support of the applicant for Department of Veterans Affairs (VA) benefits.

	a.  In the statement prepared by D----l G. C------l to C-----s B------r, dated
8 January 2012, he states the applicant asked him to write about the recovery of a D26 Bucket Loader.  He was the senior heavy equipment mechanic from
6 January 1970 to 11 August 1971.  He states the applicant was ambushed the 


last part of March 1971 during Dewey Canyon II and Lan Som 719.  He states the applicant was ambushed with RPGs, and gunfire.  He (the writer) states he was sent to recover the bucket loader; it had 26 holes in the loader from front to back.  They should have junked the loader; never could get it to work correctly again.  The equipment was turned over to South Vietnam in August 1971.

	b.  In the statement prepared by R-----d J. M------n to the VA, dated 8 January 2012, he supports the applicant's request for a Purple Heart.  The writer was the unit's operations noncommissioned officer (NCO) and he served with the applicant for approximately 21 months.  Describing the same incident, he believes the applicant was hit by shrapnel in the arm and shoulder when he dismounted his loader.  He also believes the applicant was given the opportunity to apply for a Purple Heart at the time, but due to the situation and the mission the unit was trying to complete, he selflessly declined.

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.  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 United States Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant.

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 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.  While the sincerity of the applicant's claim that he was wounded in Vietnam is not in question, he has failed to show through the evidence submitted and the evidence of record, sufficient evidence to show that he was treated for wounds that were the result of enemy action.

2.  The supporting statements have been noted; however, they are insufficient to establish the criteria necessary to meet the requirements for award of the Purple Heart in this case.


3.  There simply is no evidence of record to corroborate the specific facts and circumstances leading to his wounding or that any medical treatment was made for any such wounds.

4.  In view of the foregoing, there is an insufficient evidentiary basis for awarding the applicant the Purple Heart or adding it to his records as 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.

ABCMR Record of Proceedings (cont)                                         AR20120004878



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ABCMR Record of Proceedings (cont)                                         AR20120004878



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