IN THE CASE OF:	  

		BOARD DATE:	  6 December 2012

		DOCKET NUMBER:  AR20120010212 


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 the Purple Heart (PH) be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  

2.  The applicant states he did not receive the PH for wounds he received in the Republic of Vietnam (RVN) in December 1970.  He states he received a shrapnel wound from a mortar fire and was treated but not medically evacuated.  He claims his medical record noted the wound to his left leg above the left ankle. 

3.  The applicant provides a third-party statement from his cousin and a photograph in support of his request. 

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.  On 20 May 1970, the applicant enlisted in the Regular Army and he was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman0.

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 2 November 1970 to 4 November 1971.  Item 40 (Wounds) is blank, and the PH is not included in the list of awards entered in item 41 (Awards and Decorations).  His record is void of orders or other documents indicating he was awarded the PH by proper authority while serving on active duty.  It is also void of any documents  and/or medical treatment records showing he was wounded in action or that he was treated for a combat-related wound by medical personnel while serving in the RVN.  The applicant last audited this DA Form 20 on 10 December 1971.  

4.  On 25 December 1971, the applicant was honorably released from active duty.  The DD Form 214 he was issued at the time shows he completed 1 year, 
7 months, and 6 days of active military service.  It also shows that during his active duty tenure he earned the following awards: 

* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge (Rifle M-16)
* Vietnam Service Medal
* RVN Campaign Medal
* Combat Infantryman Badge
* Bronze Star Medal with “V” Device 1st Oak Leaf Cluster (2nd Award)
* 2 Overseas Service Bars

5.  The applicant again enlisted in the Army on 2 October 1975.  He served 
1 year, 5 months, and 7 days until being honorably discharged on 8 March 1977.  The DA Form 2-1 (Personnel Qualification Record) prepared during this enlistment on 2 March 1977 does not include the PH in the list of awards contained in item 9 (Awards, Decorations and Campaigns).  The 
DD Form 214 issued to the applicant upon completion of this term of service also does not include the PH in the earned awards listed.  

6.  The applicant provides a third-party statement from his cousin who indicates the applicant was wounded during an engagement they were both in while serving in the RVN.  He also provides photographs which he indicates are of his wound as it appears now and of him while at the 326th Evacuation Hospital in the RVN in January 1971.  



7.  A review of The Adjutant General's Office, Casualty Division's Vietnam casualty listing does not show the applicant's name as a casualty.

8.  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 an order awarding the applicant the PH. 

9.  Army Regulation 600-8-22 (Military Awards) contains the Army’s awards policy.  Paragraph 2-8 contains guidance on the PH.  It states in order to support award of the PH there must be evidence that the wound for which the award is being made was received as a result of enemy action, the wound must have required treatment by military medical personnel, and a record of the medical treatment must have been made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for award of the PH has been carefully considered.  However, there is insufficient evidence to support his request.  By regulation, in order to support award of the PH there must be evidence the wound for which the award is being made was received as a result of enemy action, the wound must have required treatment by medical personnel, and a record of the medical treatment must have been made a matter of official record. 

2.  Although the applicant provides a third-party statement indicating he was wounded in action and photographs showing a wound, his record is void of any entries or documents that indicate he was wounded in action or treated for a combat-related wound while serving in the RVN.  Further, item 40 of his DA Form 20 is blank which indicates he was not wounded in action and there is no entry on the Vietnam casualty listing, the official DA list of RVN casualties, pertaining to the applicant.  

3.  In addition, the record documenting his second period of active service is also void of any indication that he was wounded in action.  Absent any evidence of record confirming the applicant was wounded as a result of enemy action, the third-party statement and photographs he provides are not sufficiently compelling to support award of the PH.  The regulatory burden of proof necessary to support award of the PH has not been satisfied; therefore, there is an insufficient evidentiary basis to support granting the requested relief.  

4.  The applicant and all others concerned should know that this action related to award of the PH in no way diminishes the sacrifices made by him 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)                                         AR20120010212



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ABCMR Record of Proceedings (cont)                                         AR20120010212



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