BOARD DATE:	  9 October 2012

		DOCKET NUMBER:  AR20120007048 


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 was injured in Vietnam
* there are no medical records in St. Louis from the evacuation hospital where he was treated
* he did not receive the Purple Heart

3.  The applicant provides:

* three eyewitness statements
* Daily Staff Journal

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 was inducted into the Army of the United States on 16 May 1968.  He served as a light weapons infantryman in Vietnam from 11 November 1968 to 19 May 1969.  On 22 May 1969, he was honorably discharged due to hardship.   

3.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) does not show the Purple Heart as an authorized award.

4.  There is no evidence in the available records which shows the applicant was awarded the Purple Heart or was wounded as a result of hostile action in Vietnam.

5.  His DA Form 20 (Enlisted Qualification Record) does not show entitlement to the Purple Heart and item 40 (Wounds) on his DA Form 20 is blank.  His name does not appear on the Vietnam Casualty Roster.

6.  On 22 May 1969, he underwent a separation physical examination which makes no mention of any injuries or wounds sustained as a result of hostile action in Vietnam.  His Standard Form (SF) 88 (Report of Medical Examination), dated 22 May 1969, shows he received a permanent "3" profile for hearing and stated he had "Mixed hearing loss" and "Pt. (patient) exposed to explosions in V.N. (Vietnam)."   

7.  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.

8.  He provided an undated eyewitness statement from his battalion commander at the time in question who attests:

* on 23 February 1969 his company came under a mortar attack at a fire base just outside of Vinh Kim in Vietnam
* the applicant was impacted by the attack
* he was thrown through the air by the explosion of one of the mortar rounds
* he luckily received no discernible wounds but he suffered an acute total loss of hearing apparently due to a concussion
* he was evacuated to the 29th evacuation hospital the next day
* although his hearing improved and he was returned to duty he needed subsequent treatment on several occasions

9.  He provided an email, dated 23 January 2012, from a medic at the time in question who attests he treated the applicant for a small concussion at Vinh Kim after a mortar round knocked him off his feet in February 1969.

10.  He provided an eyewitness statement, dated 12 January 2012, from a radio telephone operator who served under the above mentioned battalion commander.  He attests:

* he was on watch the night of 23 February 1969 when the compound in Vinh Kim was hit by mortar and small arms fire
* the applicant was seen by the above mentioned medic 

11.  He also provided a Daily Staff Journal for the period 23 February 1969 which shows Vinh Kim received incoming sniper fire and an unknown number of mortar rounds at 0158.    

12.  Army Regulation 600-8-22 (Military Awards) provides the Purple Heart is awarded for a wound sustained 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 military medical personnel, and the medical treatment must have been made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was wounded in Vietnam and he never received the Purple Heart.

2.  Army Regulation 600-8-22 establishes basic requirements for the Purple Heart and all other awards.  The Purple Heart requires:

* the wound was the result of hostile action
* treatment of the wound by medical personnel
* documentation of the wound in official records

3.  Although contemporaneous medical evidence (his SF 88, dated 22 May 1969) states he had mixed hearing loss and he was exposed to explosions in Vietnam, it does not mention any injuries or wounds sustained as a result of hostile action.  



4.  There is no evidence in the available record that shows he was wounded as a result of hostile action in Vietnam.  In the absence of corroborating evidence showing he was injured and treated for wounds as a result of hostile action in Vietnam, the statements and Daily Staff Journal provided by the applicant are not sufficient as a basis for awarding the Purple Heart.  Regrettably, there is an insufficient evidentiary basis for awarding him a 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)                                         AR20120007048



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ABCMR Record of Proceedings (cont)                                         AR20120007048



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