IN THE CASE OF:	  

		BOARD DATE:  30 May 2013

		DOCKET NUMBER:  AR20120021132 


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, the son of a former service member (FSM), requests his father be awarded the Purple Heart for wounds received on or about 8 November “1968” in Vietnam.

2.  The applicant states:

* the FSM was injured while assisting a South Vietnamese unit under attack
* the FSM's injury was misdiagnosed in November 1968, but it was confirmed the FSM had shrapnel in the left forearm by a physician at the Department of Veterans Affairs (VA) in Texas

3.  In a statement, dated 7 November 2011, the FSM attests:

	a.  On 8 November 1969, as a member of Advisory Team 109 in Vietnam, he received a wound while assisting a unit that had been ambushed by Viet Cong forces.  The wound consisted of a splinter of shrapnel to the left forearm.  

	b.  The wound was initially misjudged by him as an imbedded small piece of wood as he crawled off the mortar barrage area.  Later, the VA Hospital determined that the chronic itching to this left forearm was caused by imbedded shrapnel. 

4.  The applicant provides:

* statement from FSM
* award certificate and orders for the Army Commendation Medal with "V" Device
* VA medical records
* his birth certificate and certificate of citizenship
* Power of Attorney

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 FSM previously requested award of the Purple Heart for wounds received in action in May 1969.  At that time he stated he was injured when the jeep he was driving went out of control while they were under enemy fire and he hurt his shoulder, back and cut his arm.  On 25 October 1989, the ABCMR denied this request.     

3.  Having prior service in the Army National Guard, Regular Army (RA), and U.S. Army Reserve, the FSM enlisted in the RA on 7 March 1956.  He remained on active duty through continuous reenlistments.  He served as an infantryman in Vietnam from 5 May 1966 to 2 May 1967 and from 14 February 1969 to 
7 February 1970.  He retired on 31 October 1979 in the rank of sergeant major.

4.  The FSM's DD Forms 214 do not show the Purple Heart as an authorized award.

5.  There is no evidence in the available records which show the FSM was awarded the Purple Heart or that he was wounded as a result of hostile action in Vietnam.

6.  His DA Form 2-1 (Personnel Qualification Record) does not show entitlement to the Purple Heart. 

7.  The FSM's name does not appear on the Vietnam casualty listing.
8.  A review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), 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 FSM.

9.  The applicant provides orders for the Army Commendation Medal with "V" Device for heroism on 8 November 1969 in Vietnam.  However, the citation does not state the FSM was wounded as a result of hostile action on that date. 

10.  The applicant also provided a radiology imaging report, dated 24 May 2005, which shows a small metallic foreign body was located in the FSM's left forearm.  However, there is no evidence this metallic foreign body is the result of hostile action.

11.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that 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.  Although the applicant claims the FSM was wounded in November 1968, the FSM contends he was wounded in November 1969 in his left forearm by shrapnel.

2.  Army Regulation 600-8-22 establishes basic requirements for the Purple Heart and all other awards.  The Purple Heart requires evidence to verify:

* the wound was the result of hostile action
* treatment of the wound by medical personnel
* documentation of the wound in official records

3.  The radiology imaging report provided by the applicant that shows a small metallic foreign body was located in the FSM' left forearm in 2005 was noted.  However, there is no evidence this metallic foreign body was the result of hostile action.  It appears the FSM also acknowledged that he did not receive treatment of the injury because he thought it was a small wooden splinter.

4.  There is insufficient evidence in the available record that shows the FSM was wounded as a result of hostile action in Vietnam.  Regrettably, there is an insufficient evidentiary basis for awarding him a Purple Heart.
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)                                         AR20120021132



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ABCMR Record of Proceedings (cont)                                         AR20120021132



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