IN THE CASE OF:
BOARD DATE: 9 May 2013
DOCKET NUMBER: AR20120018362
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 had malaria, jungle rot, and he was wounded by sharp metal from a grenade [while in Vietnam], but there are no medical records that show this. In 2009, he applied for the Purple Heart but it was denied due to a lack of medical evidence to support his claim. He was told his medical records were on loan to the Department of Veterans Affairs (VA) and they could not be located. It took him 3 years to get his medical records and they contain no evidence of the malaria or jungle rot he had, or the wound he received from a grenade. He believes his records must be under the first name of "Loui" instead of "Luis" because that is what the medics called him.
3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and one page of a VA Rating Decision.
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's records show he was inducted into the Army of the United States on 9 November 1965 and he held military occupational specialty 11C (Infantry Indirect Fire Crewman). He served in Vietnam from 15 September 1966 to 28 August 1967.
3. He was honorably released from active duty on 29 August 1967 and he was transferred to the U.S. Army Reserve. He completed 1 year, 9 months, and 21 days of creditable 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 (Enlisted Qualification Record) is blank and item 41 (Awards and Decorations) does not show the Purple Heart.
6. A review of the Vietnam casualty listing failed to show his name as a casualty.
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. The applicant provides one page of a VA Rating Decision, dated 17 November 1976, wherein it stated the applicant served in Vietnam for 11 months and 15 days and he stated while on patrol duty in 1967 he was struck in the left buttock by a fragment of an exploding grenade. He was able to get to an aide station where the wound was cleaned and bandaged and he went to the hospital the next day. He was told the fragment was too deep for surgery and he returned to duty. An x-ray showed an irregular rectangular, opaque metallic foreign body deep in the left buttock.
9. Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound/injury 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. Although the applicant provides one page of a VA Rating Decision from 1976, wherein it stated an x-ray showed he had a metallic foreign body in his left buttocks that he (the applicant) contends was from a shrapnel wound he received in Vietnam, there are no medical records or other documentation to support this contention.
3. The evidence of record is void of any evidence that shows the applicant was wounded or injured as a result of combat. His name is not listed on the Vietnam casualty listing and his DA Form 20 does not indicate he received a combat-related wound.
4. Notwithstanding the applicant's sincerity, 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 for granting him the requested relief.
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) AR20120018362
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ABCMR Record of Proceedings (cont) AR20120018362
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