BOARD DATE: 23 May 2013
DOCKET NUMBER: AR20120019520
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:
a. he served in the Army during the Vietnam Era in 1972; and
b. he was injured and feels he should have been awarded the PH.
3. The applicant provides no additional documents.
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 enlisted in the New York Army National Guard (NYARNG) on
9 November 1971 for a period of 6 years. On 3 March 1972, he entered active duty for training.
3. The applicant's record contains a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 1 May 1972, that shows he sustained a stress fracture to his right and left heels as a result of running and walking with flat feet while wearing boots during his basic training at Fort Dix, NJ in March 1972.
4. His DA Form 20 (Enlisted Qualification Record) contains no entry in item 31 (Foreign Service) or item 40 (Wounds). Additionally, item 41 (Awards and Decorations) does not show he was awarded the PH.
5. On 6 March 1973, a Physical Evaluation Board (PEB) found the applicant unfit for further military service based on his stress fracture injuries. The PEB recommended his placement on the Temporary Disability Retired List (TDRL) with a 30 percent disability rating.
6. On 12 March 1973, the applicant concurred with the PEB's findings and recommendation. The PEB findings and recommendation were approved on 19 March 1973.
7. The applicant's record does not include any medical treatment record that indicates he was ever treated for a combat-related wound or injury while serving active duty. Further, there are no orders or documents indicating he was ever recommended for or awarded the PH by proper authority.
8. On 23 April 1973, the applicant was retired after completing 1 year, 1 month, and 21 days of total active service. The DD Form 214 he was issued at that time shows his last duty of assignment was with the Medical Holding Company, Fort Dix. It does not include the PH among its lists of awards.
9. Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy. Paragraph 2-8 contains the regulatory guidance pertaining to award of the PH. It states that 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, that the wound required treatment by medical personnel, and a record of this medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he should be awarded the PH for injuries he sustained while serving on active duty during the Vietnam Era.
2. The evidence of record confirms the applicant sustained stress fracture injuries to his heels during basic training rendering him unfit for continued service as determined by the PEB. Accordingly, he was placed on the TDRL with a 30 percent disability rating. Absent evidence to show he was wounded as a result of enemy action and that he was treated for those wounds by military medical personnel while serving on active duty, there is an insufficient evidentiary basis for awarding him the PH.
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.
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