IN THE CASE OF:	  

		BOARD DATE:  8 November 2012

		DOCKET NUMBER:  AR20120009119 


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:

* his injuries were not reported and he never received his Purple Heart
* years after his discharge, it was acknowledged that he was injured in Vietnam
* the truck he was driving in Vietnam was hit with a bomb and the truck was turned over
* he has been diagnosed and rated with the following:

*	traumatic brain injury, 40 percent
*	post traumatic stress syndrome, 100 percent

* he did not receive the Purple Heart because his conditions were not recognized at the time
* he gave up the hope of a happy normal life to serve his country when many did not
* receipt of the Purple Heart would mean the world to him and his family and recognize his sacrifice

3.  The applicant provides:

* self-authored statements from his wife
* Department of Veterans Affairs (VA) rating decision, dated 6 October 2009
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 in the Army of the United States on 29 June 1967.  He completed training and was awarded military occupational specialty 76P (Stock and Accountability Specialist).  The highest rank/grade he attained while on active duty was specialist four/E-4.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows:

* Item 31 (Foreign Service), U.S. Army Pacific, Vietnam, 11 December  1967 to 2 February 1969

* Item 38 (Assignments), he was assigned to the following units while in the Republic of Vietnam:

*	11th Supply Company (Repair Parts), 7 December 1967 31 August 1968
*	U.S. Army Depot, Long Binh, 1 September 1968 to 2 February 1969

* Item 40 (Wounds) is blank
* Item 41 (Awards and Decorations) shows award of the following:

*	National Defense Service Medal
*	Republic of Vietnam Campaign Medal with Device (1960)
*	Vietnam Service Medal
*	2 Overseas Bars
*	Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14)

4.  Item 38 of the applicant's DA Form 20 does not show he was ever in a patient status.

5.  The applicant's name does not appear on the Vietnam Casualty Roster.

6.  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 United States Army Human Resources Command failed to reveal any orders for award of the Purple Heart.

7.  The applicant provides a copy of his VA rating decision which shows he has an overall combined service-connected disability rating of 100 percent.  His service-connected disabilities are post-traumatic stress disorder, rated at 100 percent, and traumatic brain injury, rated at 40 percent.  Further, the VA rating decision shows verification from the U.S. Army and Joint Services Records Research Center verified that in January 1968, Headquarters Command Saigon and the immediate areas sustained continued enemy weapons fire for 48 hours and an unknown ton truck with 3 personnel on the way to the Battalion Motor Pool to relieve the guard on duty came under grenade and small arms fire, resulting in 2 U.S. Soldiers wounded in action and vehicle damage.  Reasonable doubt was applied in their decision.  The documentation used for verification was not provided. 

8.  On 3 February 1969, the applicant was honorably release from active duty and transferred to the U.S. Army Reserve to complete his remaining service obligation. 

9.   He completed 1 year, 7 months, and 7 days of creditable active military service.  His DD Form 214 shows he was awarded or authorized the:

* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)

10.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained 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, and the medical treatment must have been made a matter of official record.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:  injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy generated explosions.

11.  Title 10, U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration.  Based upon such review, the Secretary shall determine the merits of approving the award.

12.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander, U.S. Army Human Resources Command, ATTN:  AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  The unit must be clearly identified, along with the period of assignment and the recommended award.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request.  The burden and costs for researching and assembling supporting documentation rest with the applicant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for award of the Purple Heart was carefully considered.

2.  Although the VA was able to diagnose the applicant with post traumatic stress disorder and traumatic brain injury using reasonable doubt, insufficient evidence showing he received injuries as a result of enemy action was provided with the application.   Further, the VA operates under a totally separate system with a different statutory basis.  

3.  Regrettably, absent evidence which conclusively shows he sustained wounds as a result of hostile action, there is insufficient basis for awarding the Purple Heart to the applicant in this case.



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)                                         AR20120009119



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ABCMR Record of Proceedings (cont)                                         AR20120009119



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