IN THE CASE OF:
BOARD DATE: 17 December 2013
DOCKET NUMBER: AR20130007289
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 and its addition to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
2. The applicant states he was blown up by a mine in the Mekong Delta and he was taken to the Tan Son Nhut Air Base in Saigon. The Purple Heart was never added to his DD Form 214. He was on temporary duty in a lot of places while serving in Vietnam, thats why his records never caught up with him. He did not realize he could get the Purple Heart. He was awarded a service-connected disability rating by the Department of Veterans Affairs (VA) for a back injury he sustained when he was blown up.
3. The applicant provides copies of his DD Form 214, DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), and a VA Rating Decision (page 3).
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 (AUS) on 8 February 1968. He completed training and was awarded military occupational specialty 76P (stock control and account specialist). He served in Vietnam from 10 July 1968 through 11 September 1969.
3. He was released from active duty on 13 September 1969 and was transferred to the U.S. Army Reserve Control Group (Annual Training). He was credited with completing 1 year, 7 months, and 6 days of net active service of which 1 year, 2 months, and 4 days was foreign service. His DD Form 214 lists the:
* National Defense Service Medal
* Vietnam Service Medal
* Vietnam Campaign Medal
* Army Commendation Medal
4. There is no entry in Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) showing he was wounded in action as a result of hostile action in Vietnam. Item 41 (Awards and Decorations) of his DA Form 20 contains no entry showing he was awarded the Purple Heart. Item 41 lists the same awards as shown on his DD Form 214.
5. His medical records are not available for review with this case and his name is not shown on the Vietnam casualty roster.
6. On 9 October 2008, he was issued a DD Form 215 correcting item 10c (Date Inducted) of his 1969 DD Form 214 to show his correct year of entry into the AUS.
7. He provided a copy of his VA Rating Decision (page 3) which shows he was awarded a permanent 100 percent service-connected disability rating for post-traumatic stress disorder with dysthymia and degenerative joint disease for a lumbar spine injury with an effective date of 18 July 2012.
8. Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained 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. By regulation, to be awarded the Purple Heart it is necessary to establish that a Soldier was wounded or injured in action. There must be evidence confirming the wound for which the award is being made was received as a direct result of, or was caused by enemy action, that the wound was treated by medical personnel, and a record of this treatment must have been made a matter of official record.
2. His service record is void of any evidence that shows he was wounded or injured as a result of combat during his period of service in Vietnam. His name does not appear on the Vietnam casualty listing and his DA Form 20 does not indicate he received a combat-related wound. Additionally, his medical records, which are necessary to confirm that treatment was required, are not available for review.
3. Notwithstanding his contention and his 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. Therefore, he is not entitled to award of the Purple Heart and its addition to his DD Form 214 at this time.
BOARD VOTE:
___X_____ ___X_____ ___X_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ 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) AR20130007289
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ABCMR Record of Proceedings (cont) AR20130007289
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