IN THE CASE OF:	   

		BOARD DATE:	  25 September 2012

		DOCKET NUMBER:  AR20120004886 


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 his name was not turned in for award of the Purple Heart. He was wounded in Vietnam and he should receive it.  In 1970, he was a member of Company D, 4th Battalion, 21st Infantry, Americal Division, located in Duc Pho.  He was wounded on 8 February 1970 while engaged in combat operations against the enemy.  

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Letter, dated 25 September 2003, from his former company commander to a Member of Congress
* Medical document, dated 28 February 2012, from the Department of Veterans Affairs (VA)
* Self-authored letter, dated 5 June 2003, to his Member of Congress

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's records show he was inducted into the Army of the United States on 13 January 1969 and he held military occupational specialty 11B (Light Weapons Infantryman).  

3.  He served in Vietnam from 10 January to 28 November 1970.  He was assigned to Company D, 4th Battalion, 21st Infantry.

4.  He was honorably released from active duty on 29 November 1970 and transferred to the U.S. Army Reserve.  His DD Form 214 does not list the Purple Heart. 

5.  Nothing in several typical sources confirm he was wounded in action and/or treated for a combat injury/wound:

* Item 38 (Record of Assignment) of his DA Form 20 (Enlisted Qualification Record) does not show he was in a patient status
* Item 40 (Wounds) of his DA Form 20 does not reflect a combat wound or injury
* Item 41 (Awards and Decorations) of his DA Form 20 does not show award of the Purple Heart.
* His records do not contain general orders authorizing him award of the Purple Heart 
* His name is not shown on the Vietnam casualty roster
* A review of the Awards and Decorations Computer Assisted Retrieval System - an index of general orders issued during the Vietnam era between 1965 and 1973 and maintained by the U.S. Army Human Resources Command - failed to reveal Purple Heart orders for him
* His official records do not contain a Department of the Army telegram or a Western Union message regarding an injury or wound
* His medical documents, specifically his chronological records of medical care, do not reflect an injury or treatment
* His separation physical (Report of Medical Examination) did not note any combat injuries or wounds


6.  He submitted a letter, dated 25 March 2003, from his former company commander in Vietnam (now a retired lieutenant colonel) to his Member of Congress wherein he states that he remembers the first platoon (applicant's platoon) was breached by enemy sappers with an intent to destroy ammunition bunkers on or about 8 February 1970.  The applicant was on guard duty that day. He sounded the alarm and requested artillery support.  A firefight occurred thereafter and the enemy was repelled.  The applicant was struck in the right side of his neck by a piece of shrapnel from an enemy grenade.  He called for a medic who came and bandaged his wound.  

7.  He also submitted a VA medical form, dated 28 February 2012, that pointed out the existence of a foreign body in the soft tissue of the neck.  

8.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained while in action against and 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.  The criteria for the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.

2.  The applicant's service record is void of any evidence that shows he was wounded or injured as a result of combat.  His name is not listed on the Vietnam casualty roster, and his DA Form 20 does not indicate he received a combat related wound.  Additionally, his medical records, which are necessary to confirm that treatment was required, neither reflect a combat injury nor treatment for such injury.

3.  Notwithstanding the applicant's and his former company commander's contentions and his sincerity, in the absence of additional documentation that conclusively shows he was wounded or injured as a result of enemy action and treated for those wounds, there is insufficient evidence upon which to base award of the Purple Heart in this case.




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)                                         AR20120004886





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ABCMR Record of Proceedings (cont)                                         AR20120004886



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