BOARD DATE:	  4 June 2013

		DOCKET NUMBER:  AR20120020541 


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 award of the Purple Heart.

2.  The applicant states he sustained a shell fragment wound in December 1969 or January 1970.  He was presented the Purple Heart in the military hospital at Quang Tri, Vietnam.  He states he believes the medal was omitted due to his medical evacuation.

3.  The applicant provides:

* DD Form 214
* Department of Veterans Affairs (VA) Rating Decision
* General Orders Number 26 awarding him the Silver Star
* Army Commendation Medal Certificate

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 was inducted into the Army of the United States on 11 December 1968 and he held military occupational specialty 11B (Light Weapons Infantryman).

3.  He served in Vietnam from 9 June 1969 to 8 June 1970.  He was assigned to Company B, 1st Battalion, 61st Infantry Regiment, 5th Infantry Brigade (Mechanized).

4.  He was honorably released from active duty on 10 September 1970.  His DD Form 214 does not show award of the Purple Heart, but lists the:

* National Defense Service Medal
* Expert Marksmanship Qualification Badge with Rifle Bar (M-14)
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Vietnam Service Medal
* Combat Infantryman Badge
* Silver Star
* Army Commendation Medal
* Bronze Star Medal
* Republic of Vietnam Campaign Medal with Device (1960)

5.  There is no evidence of record that shows he was injured or wounded as a result of hostile action or that he was awarded the Purple Heart.  Nothing in several typical sources show he was wounded/injured as a result of hostile action.

	a.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not show a combat wound or injury.

	b.  The Awards and Decorations Computer Assisted Retrieval System maintained by the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders for the Purple Heart pertaining to him.

	c.  His name is not shown on the Vietnam casualty listing.  (This is a microfiche record of Vietnam Era casualties used to verify entitlement to award of the Purple Heart.)

	d.  His records do not contain an official Army message or a Western Union telegram notifying his next of kin of an injury or wound.  (This was the proper notification of injuries at the time.)

	e.  His Standard Form 89 (Report of Medical History), dated 26 August 1970, shows he indicated he was wounded in Vietnam in December 1969, had surgery at Quang Tri, and was then evacuated to the 95th Evacuation Hospital at Da Nang. 
The examining military medical officer wrote the entry "shrapnel wound to the right forearm."

	f.  His Standard Form 88 (Report of Medical Examination), dated 26 August 1970, shows the military medical officer circled "scar" and handwrote the entry "4" – R forearm" and "post shrapnel wound w/limited residual defect" for evaluation of his upper extremities.

6.  The applicant provides an extract of his VA rating decision that shows he was awarded 10-percent service-connected disability compensation for a status post-shell fragment wound scar on his right forearm.

7.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9, stated a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization, would be entered in item 40 of the DA Form 20.  This regulation further stated the date the wound or injury occurred would also be placed in item 40.

8.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained in action against and 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.

	a.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:  injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy-generated explosions.

	b.  Examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows:  frostbite or trench foot injuries; heat stroke; food poisoning not caused by enemy agents; chemical, biological, or nuclear agents not released by the enemy; battle fatigue; disease not directly caused by enemy agents; accidents, to include explosive, aircraft, vehicular, and other accidental wounding not related to or caused by enemy action; self-inflicted wounds, except when in the heat of battle and not involving gross negligence; post-traumatic stress disorders; and/or jump injuries not caused by enemy action.

DISCUSSION AND CONCLUSIONS:

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

2.  The applicant's service record is void of any evidence that shows he was wounded or injured as a result of enemy action.  His name is not listed on the Vietnam casualty listing.  His available service medical records show he listed a shrapnel wound in December 1969 and the military medical doctor found evidence of a scar on his right forearm.  However, the cause of this wound is unknown.

3.  The applicant's service in Vietnam is not in question.  However, he has not satisfied the requirements for award of the Purple Heart in the absence of orders. 
Even though the wound he listed was corroborated, this still leaves three questions unanswered:  who or what caused the wound; did this wound require medical treatment; and, if so, was the treatment made a matter of official record? 
Until these questions are answered by appropriate documentary evidence, the applicant has not met the burden of proof.

4.  In the absence of orders or other additional documentation that conclusively shows he was wounded or injured as a result of enemy action and treated for those wounds, there is an insufficient evidentiary basis for correcting his DD Form 214 to show award of 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 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)                                         AR20120020541



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ABCMR Record of Proceedings (cont)                                         AR20120020541



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