IN THE CASE OF:	  

		BOARD DATE:  13 September 2012

		DOCKET NUMBER:  AR20120004894 


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 he served in Vietnam and he received shrapnel wounds during an engagement with enemy forces in 1967 or 1968 in the vicinity of Plei Ku, Central Highlands.  He adds that his 40 millimeter anti-aircraft gun malfunctioned and wounded personnel.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 9 July 1969 and 5 December 1972, and documents from his Department of Veterans Affairs (VA) medical records.

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) on 26 July 1966 for a period of 3 years.  He was awarded military occupational specialty 13A (Field Artillery Crewman).

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

	a.  item 31 (Foreign Service) he served in:

* Vietnam from 3 June 1967 through 2 June 1968
* Germany from 10 July 1968 through 8 July 1969

	b.  item 38 (Record of Assignments) he was assigned to Battery D,
4th Battalion, 60th Artillery, from 11 June 1967 through 22 May 1968;

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

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

4.  The applicant's DD Form 214 for the period ending 9 July 1969 shows he was honorably released from active duty on 9 July 1969 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to compete his Reserve obligation.

	a.  He had completed 2 years, 11 months, and 14 days of net active service this period.

	b.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) does not show the Purple Heart.

5.  On 4 March 1970, the applicant again enlisted in the RA for a period of
3 years.

6.  His DD Form 214 for the period ending 5 December 1972 shows he was honorably discharged based on early separation to accept employment.

	a.  He had completed 2 years, 9 months, and 2 days of net active service this period for 5 years, 8 months, and 16 days of total active service.

	b.  Item 24 does not show the Purple Heart.


7.  There is no evidence of record and the applicant did not provide any evidence showing he was awarded the Purple Heart.

8.  Review of The Adjutant General's Office, Casualty Division's Vietnam casualty listing failed to 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 U.S. Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant.

10.  In support of his application, the applicant provides thirteen pages of VA VISTA (Veterans Health Information Systems and Technology Architecture) Electronic Medical Documentation Progress Notes spanning the period
10 January to 17 March 2008.  These documents summarize the applicant's combat experience in Vietnam from June 1967 to June 1968 as described to the examining medical official.

	a.  He reported his unit took heavy mortar fire in 1968 and that, "There was a misfire on one of our guns and the gun blew up in front of me.  The gunny in front of me took off his ear and several others took shrapnel."

	b.  There is no entry showing the applicant reported that he was wounded or injured while serving in Vietnam.

11.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.  It shows the Purple Heart is awarded to any member who was wounded or killed in action or as a result of enemy action.

	a.  A wound is defined as an injury to any part of the body from an outside force, element, or agent sustained in action in the face of the armed enemy or as a result of a hostile act of such enemy.

	b.  In order to support awarding a member the Purple Heart, it is necessary to establish the wound for which the award is being made required treatment by medical personnel and the medical treatment for the wound or injury received in action must have been made a matter of official record.


	c.  The regulation provides examples of injuries or wounds that clearly do not justify award of the Purple Heart, to include explosive, aircraft, vehicular, and other accidental wounding or injury not related to or caused by enemy action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim to the Purple Heart was carefully considered.

2.  There is no evidence in the applicant's military personnel record that shows he was wounded or injured in action as a result of a hostile act of the enemy.

	a.  There is no record of medical treatment to satisfy the established requirement for award of the Purple Heart.

	b.  The applicant's name is not listed on the Vietnam casualty listing.

3.  The sincerity of the applicant's claim is not in question.  However, in order to support awarding a member the Purple Heart, it is necessary to establish that the individual was wounded or injured in action or as a result of enemy action, the wound required treatment by medical personnel, and the medical treatment must have been made a matter of official record.  The evidence of record does not satisfy the criteria for award of the Purple Heart.

4.  In view of all of the foregoing, there is an insufficient evidentiary basis to support the applicant's claim to the Purple Heart.

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)                                         AR20120004894



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ABCMR Record of Proceedings (cont)                                         AR20120004894



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