IN THE CASE OF:	  

		BOARD DATE:	  22 April 2014

		DOCKET NUMBER:  AR20130013833 


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 injured by a claymore mine in Chu Lai, Vietnam, in September or October 1971 and he did not receive the Purple Heart. 

3.  The applicant provides:

* Standard Form 513 (Consultation Sheet)
* Standard Form 600 (Chronological Record of Medical Care)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 23 March 1970.

3.  He served in Vietnam from 1 November 1970 to 31 October 1971.  While in Vietnam, he was assigned to:

* Headquarters and Headquarters Detachment, 73rd Signal Battalion, from 9 November to 28 June 1971 
* 23rd Adjutant General Replacement Detachment, from 29 June 1971 to 1 July 1971
* 23rd Administration Company, from 2 July 1971 to 31 October 1971

4.  The applicant provides a Standard Form 600, dated 29 October 1971, which shows he was seen for hearing loss that occurred 20 days prior due to an explosion in a closed area.  The form does not show what caused the explosion or the location of the explosion.  He also provides a Standard Form 513, dated 12 January 1972, which shows he was seen for a hearing evaluation of his right ear, almost 3 months after his return from Vietnam.

5.  On 15 March 1972, the applicant was honorably released from active duty and transferred to the South Carolina Army National Guard.  His DD Form 214 does not show award of the Purple Heart. 

6.  There is no evidence of record that shows he was injured or wounded as a result of hostile action or that he was awarded the Purple Heart.  There is also nothing in the typical sources below that show he was wounded and/or injured as a result of hostile action:

	a.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) does not show he was ever in a patient status.

	b.  Item 40 (Wounds) of his DA Form 20 does not show a combat wound or injury.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9, stated a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization would be entered in item 40 of the DA Form 20.  This regulation further stated that the date the wound or injury occurred would also be placed in item 40.

	c.  A review of the Awards and Decorations Computer Assisted Retrieval System maintained by the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders for the Purple Heart pertaining to him.

	d.  His name is not shown on the Vietnam casualty listing.  This is a microfiche listing of Vietnam Era casualties that is used to verify entitlement to the Purple Heart.

7.  Army Regulation 600-8-22 (Military Awards) provides that 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 that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.  Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:  injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; injury caused by enemy placed mine or trap; injury caused by enemy released chemical, biological, or nuclear agent; injury caused by vehicle or aircraft accident resulting from enemy fire; and/or concussion injuries caused as a result of enemy generated explosions.

DISCUSSION AND CONCLUSIONS:

1.  The criteria for an award of the Purple Heart requires the submission of substantiating evidence to verify the injury/wound was sustained in action against an enemy or as a result of hostile action, that the injury/wound required treatment by medical personnel, and that the medical treatment was made a matter of official record.

2.  Although he provides medical documentation for his hearing loss, this documentation is after the fact and he fails to provide medical documentation for treatment received while he was in combat.

3.  Notwithstanding his sincerity, in the absence of documentation that conclusively shows he was wounded or injured as a result of hostile action, treated for those wounds/injuries, and his treatment was made a matter of record, there is insufficient evidence upon which to base award of the Purple Heart in this case.

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)                                         AR20130013833



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ABCMR Record of Proceedings (cont)                                         AR20130013833



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