BOARD DATE: 13 August 2013
DOCKET NUMBER: AR20130003213
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 he was a member of the 330th Radio Research Company on 30 August 1970 when his unit was attacked by a 107 rocket and 5 members of his command were killed. Several members were wounded, and he was given a PH. He has no paperwork but does have his medal.
3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a copy of a printout from the Department of Veterans Affairs (VA).
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 18 May 1967. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 72B (Communications Center Specialist).
3. The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam with the 330th Radio Research Company, 313th Radio Research Battalion from 31 October 1969 to 27 November 1970. He was honorably released from active duty on 30 November 1970.
4. The applicant's DD Form 214 does not show award of the PH.
5. Item 40 (Wounds) of his DA Form 20 does not reflect a combat wound or injury and item 41 (Awards and Decorations) does not show award of the PH.
6. The applicant's name does not appear on the Vietnam Casualty Roster for a wound received as a result of hostile action.
7. The Awards and Decorations Computer Assisted Retrieval System (ADCARS) failed to show that orders were published awarding the applicant the PH.
8. He provided a copy of a printout from the VA which indicated he was awarded a service-connected disability rating of 10 percent for degenerative joint disease and 30 percent for Post-Traumatic Stress Disorder (PTSD).
9. Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained while in action against an 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention he should be awarded the PH was carefully considered. However, there is insufficient evidence to grant him relief in this case.
2. The criteria for an award of the PH requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required treatment by personnel, and the medical treatment must have been made a matter of official record.
3. There are no medical records available to show he was treated for wounds as a result of hostile action. The VA printout failed to show he was injured as a result of enemy action.
4. The applicant's name is not listed on the Vietnam Casualty Roster. As a result, absent evidence the injury received by the applicant was the result of enemy action and required treatment the regulatory burden of proof necessary to support award of the PH has not been satisfied.
5. This action in no way diminished the sacrifices made by the applicant in service to our Nation. The applicant and all Americans should be justifiably proud of his service in arms.
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) AR20130003213
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