BOARD DATE: 22 October 2013
DOCKET NUMBER: AR20130004739
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.
2. The applicant states he informed his commander that he was having surgery. He contends that his commander failed to act in his behalf and did not submit a request for the Purple Heart knowing he was being medically evacuated out of Vietnam. He continues that he was flown to Japan for surgery to remove a residual lymphoma in the left lower quadrant of the abdomen but it was never looked into or followed up, resulting in no action but labeled as just a scar.
3. The applicant provides a DD Form 214 (Armed Forces of the United Sates Report of Transfer or Discharge), and a Department of Veterans Affairs (VA) Corporate Award and Rating Data.
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 was inducted into the Army on 19 September 1967. He was awarded military occupational specialty 13F (Cannoneer) upon completion of initial entry training.
3. Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from 26 February 1968 to 28 January 1969. Item
38 (Record of Assignments) shows he was in a patient status, assigned to the 7th Field Hospital, APO 96344 (Japan) from 25 January 1969 to 25 March 1969. Item 40 (Wounds) is blank and item 41 (Awards and Decorations) does not show the Purple Heart.
4. There is no evidence of record that indicates he was recommended for or awarded the Purple Heart or that he was treated for a combat-related wound.
5. He was honorably released from active duty on 18 September 1969.
6. Review of The Adjutant General's Office, Casualty Division's Vietnam casualty listing does not show the applicant's name as a casualty.
7. 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 applicant.
8. He provides a VA Corporate Award and Rating Data that suggests he was granted service connected disability compensation for a number of medical conditions including a scar, left lower quadrant of the abdomen. This document does not show he was wounded as a result of hostile actions.
9. Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained in action against an 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he should be awarded the Purple Heart has been carefully considered.
2. His DA Form 20 contains no entries indicating he was wounded in action and there is no evidence in his military record that indicates he was treated for a combat-related wound. His name is not listed on the Vietnam casualty listing.
3. Evidence shows he was medically evacuated to Japan. However, there is no evidence showing he was evacuated due to wounds received as a result of hostile actions.
4. The governing regulation requires that substantiating evidence must be provided to verify the injury was the result of hostile action and that the injury required treatment by medical personnel. In the absence of such corroborating evidence, the documents provided are insufficient evidence for award of the Purple Heart.
5. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.
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.
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