IN THE CASE OF:	  

		BOARD DATE:	  4 December 2012

		DOCKET NUMBER:  AR20120010649 


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 (PH).

2.  The applicant states he was wounded when he stepped into a punji stick booby trap set by hostile forces in the Republic of Vietnam (RVN) sometime between May and August of 1966.  He also states he would like to appear before the Board in Washington, DC, at his own expense to present his case.

3.  The applicant provides third-party affidavits from his former unit commander, former unit executive officer, and a fellow Soldier who served with him in the RVN 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 17 September 1965, the applicant enlisted in the Regular Army and he was trained in and awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).  His record shows he was promoted to sergeant/E-5 on 1 March 1967 and this is the highest rank he attained while serving on active duty.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the RVN from 16 April 1966 to on or about 11 April 1967.  Item 40 (Wounds) is blank and the PH is not included in the list of awards entered in item 41 (Awards and Decorations).  Item 38 (Record of Assignments) shows he was in a patient status on 13 December 1966 and returned to duty on or about 12 January 1967.

4.  The applicant's Military Personnel Records Jacket (MPRJ) 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 the DA Form 20 on 26 May 1967 subsequent to his RVN service.

5.  On 9 July 1968, the applicant was honorably released from active duty.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 2 years, 9 months, and 23 days of active military service.  It also shows he was awarded or authorized the:

* National Defense Service Medal
* Vietnam Service Medal
* RVN Campaign Medal
* two overseas service bars
* Combat Infantryman Badge
* Parachutist Badge
* Army Good Conduct Medal
* Bronze Star Medal

6.  The applicant provides third-party affidavits from his unit commander, executive officer, and a fellow Soldier who served with him in the RVN.  All three indicate the applicant was injured as a result of stepping into a punji stick booby trap in the RVN in May or June 1966.  They all state he was not treated by military medical personnel at the scene and was later treated from the resulting infection after their arrival at the base camp the next day.

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, 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 an award of the PH pertaining to the applicant.

9.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 2-8 contains guidance for the PH.  It states 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, that it required treatment by medical personnel, and a record of the medical treatment must have been made a matter of official record.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Section IV (Hearings and Disposition of Applications) contains guidance on ABCMR hearings.  It states that applicants do not have the right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

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.

2.  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 required treatment by medical personnel, and a record of the medical treatment must have been made a matter of official record.

3.  Although the applicant provides affidavits from third-parties who attest to the fact that he was wounded as a result of enemy action in the RVN when he stepped into a punji stick booby trap, there is no evidence of record corroborating the information in these affidavits or that outline the facts and circumstances surrounding the applicant's injury.

4.  The record is void of any entries or documents that indicate the applicant was wounded in action or treated for a combat-related wound while serving in the RVN.  Further, item 40 of his DA Form 20 which he last audited subsequent to his service in the RVN is blank, which indicates he was not wounded in action.  Further, there is no entry on the Vietnam casualty listing, the official DA list of RVN casualties, pertaining to the applicant.  

5.  Absent any evidence of record confirming the applicant was wounded as a result of enemy action or medical treatment records showing he was treated for a combat-related wound by military medical personnel in the RVN, the third-party affidavits he provides alone are not sufficiently compelling to support granting the requested relief.  The regulatory burden of proof necessary to support award of the PH has not been satisfied in this case.  

6.  The applicant's request to personally appear before the Board in Washington, DC, has also been carefully considered.  However, by regulation, a personal appearance Board may be granted by the Director of the ABCMR or by an ABCMR panel if justice requires.  In this case, a personal appearance Board is not necessary to serve the interest of justice.

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 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 our Nation.  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)                                         AR20120010649



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ABCMR Record of Proceedings (cont)                                         AR20120010649



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