IN THE CASE OF:
BOARD DATE: 29 October 2013
DOCKET NUMBER: AR20130005949
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, in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Purple Heart.
2. The applicant states that after receiving a head wound in Vietnam on 31 March 1968, the Purple Heart was not recorded in the appropriate form in his Military Personnel Records Jacket. He contends that the wound is recorded in his medical records and is acknowledged by the Department of Veterans Affairs (VA).
3. The applicant provides his DD Form 214, VA Rating Decision, and page 4 of his DA Form 20 (Enlisted Qualification Record).
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 of the United States on 7 December 1966. He was awarded military occupational specialty 35D (Meteorological Equipment Repairman) upon completion of initial entry training. He was honorably discharged on 4 January 1967 for immediate enlistment in the Regular Army. On 5 January 1967, he enlisted in the Regular Army for a period of 3 years.
3. His DA Form 20 shows he arrived in Vietnam on 23 March 1968. He was assigned to Headquarters and Headquarters Battery, Division Artillery, 9th Infantry Division. He departed Vietnam on or about 7 August 1969.
4. Item 40 (Wounds) of his DA Form 20 is blank and item 41 (Awards and Decorations) does not show the Purple Heart.
5. There is no evidence in his military records that indicates he was awarded the Purple Heart or that he was treated for a combat-related wound.
6. He was honorably released from active duty on 8 August 1969. His DD Form 214 does not show the Purple Heart as an authorized award.
7. A review of the Adjutant General's Office Casualty Division's Vietnam Casualty Listing does not show the applicant's name as a combat casualty.
8. 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.
9. He provides a VA Rating Decision that shows he was granted service-connected compensation for a head laceration claimed as residuals of a gunshot wound to the head. The rating decision further indicates that treatment records show the applicant was treated on 31 March 1968 for a laceration to his scalp which occurred after he fell and hit his head.
10. The medical records mentioned in the VA Rating Decision are not available for review.
11. 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 his DD Form 214 should be corrected to show award of 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 records that indicates he was treated for a combat-related wound. His name is not listed on the Vietnam casualty listing. 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 evidence, the VA Rating Decision which does not indicate the circumstances surrounding his injury, is insufficient evidence on which to base award of the Purple Heart.
3. In view of the foregoing, there 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.
ABCMR Record of Proceedings (cont) AR20130005949
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ABCMR Record of Proceedings (cont) AR20130005949
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