BOARD DATE:	  25 July 2013

		DOCKET NUMBER:  AR20120023038 


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 Bronze Star Medal and Purple Heart. 

2.  The applicant states he was a dental assistant with the 6th Convalescent Center Dental at Cam Ranh Bay, Vietnam when his superior noncommissioned officer (NCO) gave him a letter to deliver to the provost marshal in Saigon.  He arrived in Saigon around the end of January 1968 as the Tet offensive had begun.  A convoy of American 2 1/2 trucks was passing by when it was attacked by a local teenage Vietnamese boy dressed in plain black clothing.  He threw a canvas bag at the last passing truck in the column.  Although he was able to shoot the perpetrator, the resulting explosion caused him injuries.  He remembers being transferred to a temporary triage area or a hospital building where a surgeon told him he had removed bomb fragments from his spine and a large steel fragment from his back.  He was discharged from that hospital a few days later and continued with the delivery of the message.  When he returned, his superior NCO told him he would put him in for the Bronze Star Medal and the Purple Heart.  When he outprocessed at Fort Lewis, WA, the clerk who prepared the DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) opened his service record and threw away the Purple Heart and Bronze Star Medal paperwork.  

3.  The applicant provides:

* a self-authored memoir of what occurred before, during, and after his Saigon trip
* a statement of support from another individual
* Congressional correspondence
* DD Form 214
* Honorable Discharge Certificate
* Discharge orders from the U.S. Army Reserve (USAR)
* Letter of appreciation
* Court Order for change of name
* Statement in support of Department of Veterans Affairs (VA) claim
* Letter from the National Personnel Records Center

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.  With respect to the Bronze Star Medal:

	a.  Based upon his application, the evidence of record, and accompanying supporting documents he has submitted, it does not appear that the applicant was recommended for or awarded the Bronze Star Medal.  

	b.  Section 1130 of the United States Code (Title 10 USC 1130) allows the Service Secretary concerned to review a proposal for the award of, or upgrading of, a decoration that is otherwise precluded from consideration by limitations established by law or policy.  In order to request an award under Title 10 USC 1130, the applicant must submit a DA Form 638 (Recommendation for Award), a copy of which is enclosed.  The DA Form 638 should clearly identify the applicant's unit, the period of assignment, and the award being recommended.  A narrative of the actions or period for which he is requesting recognition must accompany the DA Form 638.  In addition, his award request should be supported by sworn affidavits, eyewitness statements, certificates and related documents.  Corroborating evidence is best provided by commanders, leaders, and fellow Soldiers who had personal (i.e., eyewitness) knowledge of the circumstances and events relative to the request.

	c.  Title 10 USC 1130 also requires that a request of this nature be referred to the Service Secretary from a Member of Congress.   Therefore, the applicant must submit his request through a Member of Congress who will send it to the U.S. Army Human Resources Command, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

	d.  If the applicant chooses to pursue the award requested by submitting a request under the provisions of Title 10 USC 1130, and his request is subsequently denied by the U.S. Army Human Resources Command, he may reapply to the ABCMR.  Therefore, the issue of the Bronze Star Medal will not be discussed further in the Record of Proceedings. 

3.  The applicant's records show he enlisted in the Regular Army on 3 February 1966 and he held military occupational specialty 42F (Dental Specialist).  He served in Vietnam from 16 September 1967 to on or about 15 September 1968.  He was assigned to the 6th Convalescent Center, 44th Medical Brigade.  

4.  He was honorably released from active duty on 16 September 1968.

5.  His DD Form 214 lists awards of the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, and two overseas service bars.  It does not list the Purple Heart.  

6.  Nothing in several typical documents show he was injured or wounded as a result of hostile action or that he was awarded the Purple Heart:

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

	b.  Item 41 (Awards and Decorations) of his DA Form 20 does not list the Purple Heart.

	c.  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.
	d.  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).

	e.  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).

	f.  His service medical records are not available for review with this case.

7.  He submitted:

	a.  A self-authored memoir of what occurred before, during, and after his Saigon trip.  He describes the events and challenges he encountered during his trip to deliver a sealed letter to the provost marshal in Saigon. 

	b.  A statement of support from another individual who helped him draft his application for the Purple Heart.  The individual believes the applicant's story is too fantastic to be made up. 

	c.  Congressional correspondence from a professor of economics at Humboldt State University to a Member of Congress wherein the professor restates the events of delivering the letter to the provost marshal in Saigon by the applicant and states that he personally vouches for the applicant's character.

	d.  A letter of appreciation, dated 10 October 1968, from the Chief of Dental Section to the applicant acknowledging the applicant's technical skills and ability in performing his duties as a dental assistant. 

	e.  District Court Order, dated 11 October 1968, authorizing the applicant a name change. 

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

	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 the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required medical 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 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 service medical records are not available for review with this case.  There is nothing in multiple typical sources that confirm he was wounded as a result of hostile action or that he required treatment by medical personnel. 

3.  His memoirs of what occurred during his trip to Saigon do not satisfy the three-element criteria for the Purple Heart.  Notwithstanding the applicant's contention and sincerity, in the absence of additional documentation that conclusively shows he was wounded or injured as a result of enemy action and treated for those wounds, there is insufficient evidence upon which to base 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 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)                                         AR20120023038





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ABCMR Record of Proceedings (cont)                                         AR20120023038



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