BOARD DATE: 13 December 2012
DOCKET NUMBER: AR20120010647
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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he sustained a combat injury while serving in Vietnam in November 1968. He also requests, in effect, award of the Purple Heart for this injury.
2. He states:
* he was injured during a rocket attack while he was serving with the 1st Battalion, 35th Infantry Regiment, 4th Infantry Division
* he was in rehabilitation at the Cam Ranh Bay Rehabilitation Hospital in Vietnam, but this documentation is missing from his medical records
* this injury needs to be documented as a combat injury
3. He provides:
* DD Form 214
* letter from the National Personnel Records Center (NPRC), dated 19 April 2012
* request for assistance from his Congressman, dated 6 April 2012
* Standard Form 180 (Request Pertaining to Military Records)
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 25 October 1967.
3. His DA Form 20 (Enlisted Qualification Record) shows in:
a. item 31 (Foreign Service) he served in Vietnam from 5 April 1968 to 4 April 1969;
b. item 38 (Record of Assignments) he was assigned to Companies B and E of 1st Battalion, 35th Infantry Regiment, 4th Infantry Division, in Vietnam from 19 April 1968 to 30 March 1969;
c. item 38 no entry indicating he was in a patient status;
d. item 40 (Wounds) no entry; and
e. item 41 (Awards and Decorations) no entry for the Purple Heart.
4. His service record does not contain orders that show he was awarded the Purple Heart and the Vietnam casualty roster does not list his name.
5. He was released from active duty on 12 November 1969. His DD Form 214 does not show award of the Purple Heart.
6. He submitted requests to the NPRC, his Congressman, and the National Archives and Records Administration for his military medical records from the Cam Ranh Bay Rehabilitation Hospital in Vietnam.
7. A review 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 U.S. Army Human Resources Command Military Awards Branch, failed to reveal any orders for the Purple Heart pertaining to the applicant.
8. Army Regulation 600-8-22 (Military Awards) states 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 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 applicant's service record does not include medical documents that show he was treated for a combat injury by a rocket attack while he was in Vietnam.
2. His service record is void of evidence which indicates he sustained an injury as the result of hostile action. His name is not listed on the Vietnam casualty roster.
3. In accordance with the regulation, in order to award the Purple Heart, it is necessary to establish that a Soldier was wounded as a result of enemy action, that the wound required treatment by medical personnel, and the treatment must have been made a matter of official record.
4. In the absence of evidence that shows he was wounded or injured as a result of hostile action, there is an insufficient basis upon which to correct his record to show he was wounded in combat or to award him the Purple Heart 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) AR20120010647
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ABCMR Record of Proceedings (cont) AR20120010647
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