IN THE CASE OF:
BOARD DATE: 23 January 2014
DOCKET NUMBER: AR20130009889
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 was wounded on the left wrist. He still has a retained metal fragment in his left thumb. He has just recently found out that he and many other Vietnam veterans don't have anything in their medical records from their service in Vietnam. He received his wounds a result of being hit by mortar fragments when the building he was in was destroyed.
3. The applicant provides copies of photos of buildings in Vietnam; Volume I, Number 4, Delta Provider newsletter, dated 19 June 1968; 3 pages of a unit history; a 19 November 2012 Radiological report; a drawing of his hand; and a copy of a letter requesting assistance from his Congressman.
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's service medical and dental records are believed to be on permanent loan to the Department of Veterans Affairs and are not available for review.
3. The applicant served on active duty from 9 September 1966 through 30 August 1968. He served in Vietnam with the 805th Transportation Company from 6 February 1968 through 28 August 1968.
4. His DA Form 20 (Enlisted Qualification Record) does not show award of the Purple Heart and item 40 (Wounds) is blank.
5. The unit history provided by the applicant lists several Soldiers who were wounded or killed. The applicant is not named in the history.
6. A 19 November 2012 Radiological Report records retained metal fragments in the soft tissue of the left hand at the second metacarpal head.
7. A review of the Vietnam Casualty List failed to locate any reference to the applicant.
8. Army Regulation 600-8-22 (Military Awards), paragraph 2-8 provides that the Purple Heart is awarded to an individual who is wounded in action against an enemy of the United States, the armed force of a foreign country which is or has been engaged, while serving with a friendly foreign forces against an opposing force even though the U.S. is not engaged, as the result of any act of such enemy or opposing force or as a result an act of any hostile foreign force. Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record.
DISCUSSION AND CONCLUSIONS:
1. The copies of the unit history do not list the applicant by name as having received a combat wound and the photos are of such poor quality as to be of little use.
2. While the Radiological Report shows retained metal fragments, it was created 44 years after his release from active duty and there is no evidence as to the origin of the fragments.
3. The record contains no documentation to support the applicant's contention that he received a wound or injury that was the result of hostile action. Unfortunately, without a record of treatment for a wound sustained as the result of enemy action entitlement to the Purple Heart cannot be established.
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) AR20130009889
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ABCMR Record of Proceedings (cont) AR20130009889
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