BOARD DATE: 4 December 2012
DOCKET NUMBER: AR20120009717
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 that he be awarded the Purple Heart for shrapnel wounds received in Vietnam in April 1969.
2. The applicant states that around April 1969 he was injured with shrapnel near landing zone (LZ) Shuler in the An Khe Province during a mortar attack. He goes on to state that there were three wounded that day and he was treated at the 17th Field Hospital at An Khe and was returned to duty. He continues by stating his injury and treatment were not properly documented in his medical records; however, it was noted on his separation physical.
3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a copy of his 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 applicants 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 applicants 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 14 February 1968. He completed his basic training at Fort Campbell, Kentucky, his advanced individual training as a light weapons infantryman at Fort Polk, Louisiana, and his airborne training at Fort Benning, Georgia, before being transferred to Vietnam on 20 August 1968.
3. He was assigned to Company C, 1st Battalion, 50th Infantry Regiment, 173d Airborne Brigade and was advanced to the pay grade of E-4 on 7 December 1968.
4. He departed Vietnam on 16 August 1969 for assignment to Fort Lewis, Washington, where he remained until he was honorably released from active duty (REFRAD) on 13 February 1970. He was credited with 2 years of active service. His DD Form 214 issued at the time of his REFRAD does not show award of the Purple Heart.
5. A review of his official records fails to show any evidence indicating that he was wounded in Vietnam as a result of enemy action or that treatment was made a matter of record. His separation physical contains an entry indicating that he was treated for a fragment wound to the right shoulder. However, it does indicate when the treatment was made or if it was the result of enemy action.
6. Additionally, the applicants name is not contained on the Vietnam casualty listing and a search of the Awards and Decorations Computer-Assisted Retrieval System, 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 awarding him the Purple Heart.
7. 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 a medical officer, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. While the sincerity of the applicant's claim that he was wounded in Vietnam is not in doubt, he failed to show through the evidence of record and the evidence submitted with his application that he was wounded as a result of enemy action.
2. Therefore, in the absence of such evidence, there appears to be no basis to award him the Purple Heart at this time.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___x__ __x______ ____x____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices made by him in service to the United States during the Vietnam War. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ 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) AR20120009717
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