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ARMY | BCMR | CY2013 | 20130001320
Original file (20130001320.txt) Auto-classification: Denied

		IN THE CASE OF:	   

		BOARD DATE:	  30 July 2013

		DOCKET NUMBER:  AR20130001320 


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 record to show award of the Purple Heart.

2.  The applicant states he was awarded a Purple Heart while in the hospital in Japan.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and Letter Orders Number          11-1295289.

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 Regular Army on 15 March 1968.  He completed training and he was awarded military occupational specialty 76P (Stock Control and Accounting Specialist).  He subsequently served in the Republic of Vietnam for the period 4 April through 6 May 1969.

3.  His record contains Special Order TF-773, issued by the 377th Combat Support Group (PACAF), dated 2 May 1969, which shows he was to proceed in a patient status on or about 3 May 1969 to the 106th General Hospital for approximately 90 days of temporary duty for further medical treatment and/or disposition.

4.  His record contains a DA Form 20 (Enlisted Qualification Record) that shows in:

* item 40 (Wounds) no entry
* item 41 (Awards and Decorations) no entry for award of the Purple Heart

5.  His record contains a Standard Form 88 (Report of Medical Examination), dated 28 September 1970, which shows he stated he was in good health and he was qualified for separation.  It does show he had a scar, but it existed prior to his entering service.

6.  On 7 January 1971, he was honorably released from active duty.  His DD Form 214 does not show award of the Purple Heart.

7.  His record contains a letter from the Army to an attorney, dated 23 September 1976.  The letter is in reply to a request to Secretary Rumsfeld regarding the applicant's medical records.  The letter informed the attorney the medical records pertaining to the applicant's knee injury in 1969 had been located.

8.  The applicant's record does not contain nor did he provide any medical records which show he was wounded in action or treated for a wound received as a result of enemy action.  His record also does not contain orders awarding him the Purple Heart.

9.  A review of The Adjutant General's Office Casualty Division's Vietnam Casualty Listing does not show the applicant's name as a casualty.

10.  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.
11.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards policy.  Paragraph 2-8 contains guidance for award of the Purple Heart.  It states the Purple Heart is awarded to members wounded in action and states that in order to award the Purple Heart, there must be evidence the wound for which the award is being made was received as a result of enemy action, the wound required treatment by military medical personnel, and a record of the medical treatment was made a matter of official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his DD Form 214 to show award of the Purple Heart was carefully considered and it was determined there is insufficient evidence to support his request.

2.  The Purple Heart differs from all other decorations in that an individual is not "recommended" for this decoration; rather, the individual is entitled to it upon meeting specific criteria.  Award of the Purple Heart requires a Soldier to have been injured or wounded by hostile action, the wound must have required treatment by medical personnel, and the medical treatment for wounds or injuries received in action must have been made a matter of official record.

3.  It appears the applicant sustained a knee injury while in the Republic of Vietnam.  However, notwithstanding the applicant's statement and his temporary duty orders for medical treatment, there is no corroborating evidence to identify the circumstances under which the applicant was injured or describe the required medical treatment.  The applicant did not provide medical evidence which indicates he was wounded in action.  In addition, item 40 of his DA Form 20 contains no entries which indicate he was wounded in action and his name is not included on the Vietnam casualty listing, the official Department of the Army list of Vietnam battle casualties.

4.  The applicant's sincerity is not in question; however, he did not provide sufficient evidence which shows he was wounded or injured as a result of hostile action or treated for such wounds or that his treatment was made a matter of official record.  In the absence of such evidence, regrettably, the regulatory burden of proof necessary to support award of the Purple Heart has not been met.






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)                                         AR20130001320



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ABCMR Record of Proceedings (cont)                                         AR20130001320



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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