IN THE CASE OF:	  

		BOARD DATE:  23 October 2012

		DOCKET NUMBER:  AR20120008064 


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:

	a.  He was wounded in Vietnam but was not given the medal at that time.  When applying for Department of Veterans Affairs (VA) benefits, the VA said his current medical problems were associated with in-service shrapnel wounds he received in Vietnam.

	b.  He earned a Combat Infantryman Badge that puts him in actual combat where he could have been wounded due to enemy action.  The night he was wounded, he was treated by a combat medic and he had to keep fighting with the rest of the unit to stay alive.  He did not seek further treatment for his injury as they were fighting every day and he felt obligated to stay fighting with his unit.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a VA Rating Decision, dated 6 July 2011.

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 15 September 1965 and he held military occupational specialty 11C (Infantry Indirect Fire Crewman).  He served in Vietnam from 4 February 1966 to 29 January 1967 while assigned to:

* 1st Battalion, 28th Infantry from 7 February 1966 through 31 December 1967
* 2nd Battalion, 2nd Infantry from 1 to 29 January 1967

3.  On 29 January 1967, he departed Vietnam for reassignment to Fort Campbell, KY.  On 14 September 1967, he was honorably released from active duty at the expiration of his term of service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining service obligation.  He completed 2 years of total active service.  The DD Form 214 he was issued at the time does not show award of the Purple Heart.

4.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) is blank and item 41 (Awards and Decorations) does not show award of the Purple Heart.

5.  His record is void of orders showing award of the Purple Heart.

6.  There is no medical evidence in his available record and he did not provide any evidence that shows he was wounded as a result of hostile action while serving on active duty.

7.  Review of The Adjutant General's Casualty Division's Vietnam casualty listing failed to show his name as a casualty.

8.  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 United States Army Human Resources Command, failed to reveal any orders for the Purple Heart pertaining to the applicant.

9.  The applicant provides a VA Rating Decision, dated 6 July 2011, wherein it stated, in pertinent part, "Service-connection for degenerative joint disease, right knee status post-hemiarthroplasty (claimed as right knee injury) is granted with an evaluation of 10 percent effective 27 April 2009.  An evaluation of 100% is assigned effective 1 November 2009, based on surgical or other treatment necessitating convalescence….The Board of Veterans Appeals decision, dated 23 September 2010, established service-connection for right knee scars based on competent and credible lay evidence of an in-service shrapnel wound injury to the right knee that is consistent with the circumstances, conditions, and hardships of combat service in Vietnam."

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that 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 criteria for the Purple Heart requires the submission of substantiating evidence to verify that a Soldier received a wound/injury as the result of hostile action, the wound/injury must have required medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.

2.  Although the applicant provided a VA document that stated he had right knee scars from shrapnel wounds that were "consistent with the hardships of combat service in Vietnam," there is no evidence in his records and he has not provided any evidence that shows he was wounded or injured as a result of hostile action, that he was treated for such wounds by medical personnel, and that his treatment was made a matter of official record.

3.  Notwithstanding the applicant's sincerity, in the absence of conclusive evidence that shows he was wounded as a result of hostile action and treated for those wounds, regrettably, there is an insufficient evidentiary basis upon which to award the applicant the Purple Heart in this case.

4.  Nevertheless, this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.


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)                                         AR20120008064



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ABCMR Record of Proceedings (cont)                                         AR20120008064



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