IN THE CASE OF:	  

		BOARD DATE:  2 October 2012

		DOCKET NUMBER:  AR20120005454 


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 correction of his records to show award of the Purple Heart.

2.  The applicant states he was assigned to the third platoon, Company D, 
27th Engineer Battalion (Combat) at Fire Support Base Bastogne in the Republic of Vietnam (RVN).

   a.  On 9 June 1969, his squad was traveling in a convoy that was moving culverts from a lay down yard and placing them along Route 547 to improve the drainage.  The convoy came under attack by a company-size force of North Vietnamese Army (NVA) Regulars.  The truck he was in was hit by a rocket propelled grenade (RPG) and he was thrown out of the right side of the vehicle.

   b.  The rest of his squad was on the other side of the road and he attempted to run across the road to rejoin them.  Another RPG hit under the truck on the road behind him and he was struck by small shrapnel in the left hip, left arm, and left side of his neck.

   c.  His squad engaged the attacking enemy and a relief column arrived.  He was able to medically evacuate the wounded Soldiers of his squad, but he remained behind with the relief column.  Later, he went to the 101st Hospital at Camp Eagle, he received treatment, and was instructed to report to his battalion aide station in one week to receive stitches.

3.  The applicant provides copies of four pages of his Army medical records, Bronze Star Medal citation, DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and Department of Veterans Affairs (VA) medical records in support of his request.

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 13 July 1964 for a period of 3 years.  He was awarded military occupational specialty 12E (Atomic Demolition Munitions Specialist).

3.  A DD Form 214 shows he was honorably discharged on 12 June 1967.  He had completed 2 years, 10 months, and 29 days of net active service this period.

4.  He reenlisted in the RA for a period of 4 years on 13 June 1967.

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

   a.  item 31 (Foreign Service):  Vietnam:
   
* from 23 July 1968 through 22 July 1969
* from 29 January through 17 December 1970

	b.  item 38 (Record of Assignments):  Company D, 27th Engineer Battalion (Combat), from 26 July 1968 through 21 July 1969;

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

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


6.  A DD Form 214 shows the applicant entered active duty this period on
13 June 1967 and he was honorably discharged on 11 June 1971 based on expiration of term of service.  

   a.  He had completed 3 years, 11 months, and 29 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.

7.  A review of the applicant's military personnel records failed to reveal any evidence he was awarded the Purple Heart.

8.  The Vietnam casualty listing does not show the applicant's name.

9.  A 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 the following documents:

   a.  four Army medical records spanning the period 9 June to 3 November 1969 that show (in part) the following:

* 9 June – 

* "9 June 69:  Neck cut, right elbow cut, WIA (Wounded in Action), cleaned cuts and dressed them" (this part of the description is handwritten with printed letters)
* "Patient also has lesions on (L) leg and on left buttocks" (this part of the description is handwritten in script)
* It also shows the injuries were cleaned and dressed and that the applicant was instructed to return in the morning.

* 11 June - "616th Med Co  Possible scarpnel [sic] in left side and hip line (June 9th).  X-ray taken.  Frag wound (L) hip.  Refer 85th Evac"
* 16 June - "Patient had fragment wound of (L) hip debrided on 11 June 69.  Dressing placed and patient told to have wound closed if no secondary infection"

   b.  Bronze Star Medal with "V" Device citation that shows the applicant was cited for heroism during an ambush on 9 June 1969 in the RVN.  The narrative citation describes the applicant's actions on that day.  It does not show that he was wounded in action; and

   c.  two VA Rating Decisions, dated 31 August 1971 and 29 April 2008, that show the applicant was granted service connection for all disabilities of record, including Scar Residuals, Left Hip, Shrapnel Fragment Wound and Bilateral Tinnitus.

11.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.  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.  The applicant's claim to the Purple Heart was carefully considered.

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

   b.  The medical records that the applicant provides show he was wounded in action on 9 June 1969 when he sustained injuries to his neck and right elbow and a fragment wound to his left hip.  However, the authenticity of the entry, dated
9 June 1969, is in question because the description of the medical conditions contains two distinctly different handwritings, which gives the appearance the original entry may have been altered and it now indicates "WIA."

   c.  The citation for the applicant's Bronze Star Medal with "V" Device for heroism on 9 June 1969 does not show he was wounded in action on that date.
   
   d.  The applicant's name is not listed on the Vietnam casualty listing and there is no evidence the applicant was awarded the Purple Heart.
   
2.  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 strict criteria for award of the Purple Heart.

3.  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)                                         AR20120005454



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ABCMR Record of Proceedings (cont)                                         AR20120005454



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