IN THE CASE OF:	  

		BOARD DATE:  22 January 2013

		DOCKET NUMBER:  AR20120012019 


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 he was wounded in Vietnam and he should have been awarded the Purple Heart for the shrapnel wound in his leg.  He believes he earned this award.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), DA Form 20 (Enlisted Qualification Record), a letter, and two statements of support.

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's records show he enlisted in the Regular Army on 28 October 1969 and he held military occupational specialty 11B (Light Weapons Infantryman).  He served in Vietnam from 31 May 1970 to 5 April 1971 while assigned to the 2nd Battalion, 12th Cavalry, 1st Cavalry Division.

3.  On 2 May 1972, he was honorably released from active duty and transferred to the U.S. Army Reserve.  He completed 2 years, 6 months, and 5 days of net active service.

4.  The DD Form 214 he was issued does not show award of the Purple Heart.  His records are void of orders awarding him the Purple Heart.

5.  Item 40 (Wounds) of his DA Form 20 is blank and item 41 (Awards and Decorations) does not show the Purple Heart.

6.  His medical records are not available for review with this case and there is no evidence in his available record that shows he was wounded as a result of hostile action while serving on active duty.  

7.  A review of the Adjutant General's Casualty Division's Vietnam casualty listing failed to show his 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 any orders for the Purple Heart pertaining to the applicant.

9.  The applicant provides:

	a.  A letter from the Department of Veterans Affairs (VA) written to the applicant, dated 31 July 1973, wherein it stated service-connection was established for residuals of a shell fragment wound of the right lower leg and evaluated at 10 percent disabling from 3 May 1972.

	b.  A statement of support, dated 9 April 2012, wherein a former Soldier stated he was a medic in the same unit as the applicant and he remembered the applicant being wounded by shrapnel in his lower left leg in Vietnam when the unit came under enemy fire on 31 December 1970.  He put a field dressing on the applicant's wound but the applicant did not leave the battlefield.  Seventeen Soldiers in the platoon were wounded that day and he did not fill out a wounded card for anyone because he was busy treating the wounded.

	c.  A second statement of support, dated 8 June 2012, wherein a former Soldier stated he was the applicant's squad leader in Vietnam on 31 December 1971, when the unit came under enemy fire.  He was wounded and medically evacuated that day and remembers the applicant as being less seriously wounded and treated in the field.

10.  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 criteria for award of the Purple Heart requires the submission of substantiating evidence to verify that a Soldier received a wound/injury as the result of hostile action, the wound/injury required medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.

2.  The statements provided by two of the applicant's former unit members are noted.  However, they are based on the memory of an incident that occurred on a specific day over 41 years ago during the heat of battle, and are not supported with evidence such as an operation order, an after action report, or a daily journal that confirms these statements.  Additionally, the presence of a treatment record is an essential component for award of the Purple Heart.  

3.  Although the applicant may have been granted service-connected disability from the VA for a shrapnel wound in his right leg, there is no evidence that shows this wound was incurred while the applicant was in Vietnam or that it was incurred as the result of enemy action. 

4.  His record is void of orders that show he was awarded the Purple Heart or that he was wounded or injured as a result of combat.  His name is not listed on the Vietnam casualty roster, his DA Form 20 does not indicate he received a combat-related wound, and his medical records are not available for review with this case.

5.  Notwithstanding the applicant's sincerity or the sincerity of the two former unit members, in the absence of documentation that conclusively shows he was wounded or injured as a result of enemy action, there is an insufficient evidentiary basis upon which to award the applicant the Purple Heart in this case.
6.  Nevertheless, this action in no way diminishes the sacrifices made by the applicant 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)                                         AR20120012019



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120012019



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1