IN THE CASE OF:
BOARD DATE: 1 November 2012
DOCKET NUMBER: AR20120007166
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 never issued the Purple Heart
* he was injured by enemy fire during a firefight in Vietnam in November 1969
* he was injured by shrapnel on the right side of his face
* he was flown to a fire support base for medical treatment
3. The applicant provides:
* eyewitness statement
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Army Commendation Medal with "V" Device (First Oak Leaf Cluster) Certificate and Citation
* photographs of Soldiers
* page 4 of his DA Form 20 (Enlisted Qualification Record)
* Standard Form 88 (Report of Medical Examination)
* Standard Form 89 (Report of Medical History)
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 13 January 1969. He served as a light weapons infantryman in Vietnam from 10 June 1969 to 23 December 1969. On 12 January 1971, he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining service obligation.
3. His DD Form 214 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 does not show entitlement to the Purple Heart and item 40 (Wounds) is blank. His name does not appear on the Vietnam casualty roster.
6. On 20 October 1970, he underwent a separation physical examination which makes no mention of any injuries or wounds sustained as a result of hostile action in Vietnam. On his Standard Form 89, dated 20 October 1970, he states, "Hit in Right Jaw sometime in Oct. 1969 Vietnam" and "Xray from Dental Clinic show object in Jaw." The examining physician's notes are not legible.
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 U.S. Army Human Resources Command Military Awards Branch, failed to reveal any orders for the Purple Heart pertaining to the applicant.
8. He provided an undated eyewitness statement from a fellow Soldier at the time in question who attests:
* he was in Vietnam around 5 November 1969
* during a search and destroy mission they ran into the enemy bunker and had a firefight
* he remembers the applicant being hit in the cheek with shrapnel and receiving first aid
9. He also provided a military photograph which shows a bandage on his right cheek.
10. Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained as a result of hostile action. Substantiating evidence must be provided to verify 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 (Standard Form 89, dated 20 October 1970) states he was hit in the right jaw in October 1969 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 eyewitness statement and military photograph provided by the applicant are not sufficient as a basis for awarding 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 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) AR20120007166
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20120007166
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