IN THE CASE OF:	  

		BOARD DATE:	  9 December 2014

		DOCKET NUMBER:  AR20140007484 


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 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 he believes he is eligible and entitled to award of the Purple Heart for wounds received in combat in the Republic of Vietnam on          4 October 1969.

3.  The applicant provides:

* 2 self-authored statements
* an imaging report
* DD Form 215 (Correction to DD Form 214)
* U.S. Army Veteran Medals Submission
* 3 Sworn Statements
* a letter

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 8 April 1968.  He completed training and he was awarded military occupational specialty 91A (Medic).  His record shows he served in the Republic of Vietnam for the period 7 September 1968 through 8 November 1969.

3.  On 9 November 1969, the applicant underwent a separation physical.  The Standard Form (SF) 88 (Report of Medical Examination) contained in his records shows he was found qualified for separation from service.  On his SF 89 (Report of Medical History), the applicant stated his present health as "good."  In addition, there is no indication of a wound recorded on his medical records at the time of his release from active duty. 

4.  On 9 November 1969, he was honorably released from active duty as an overseas returnee.  The DD Form 214 he received does not show award of the Purple Heart.

5.  The applicant's military records contain no medical records showing he was wounded in action or treated for a wound received as a result of enemy action.  His military records also do not contain orders awarding him the Purple Heart.

6.  His DA Form 20 (Enlisted Qualification Record) shows in:

* item 40 (Wounds) no entry
* item 41 (Awards and Decorations) no entry for award of the Purple Heart

7.  A review of The Adjutant General's Office Casualty Division's Vietnam Casualty Listing does not show the applicant's name as a 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.  The applicant provides:

   a.  a post-service medical document which indicates a millimeters sized metallic fragment subcutaneous tissues distal right lateral thigh.  

   b.  a self-authored statement in which the applicant claims he was wounded in combat on 4 October 1969, in the Republic of Vietnam.  He never received any medals until October 2013, but he recently received the Bronze Star Medal, Army Commendation Medal with "V" Device, and the Combat Medic Badge; however, he was denied the Purple Heart.  The U.S. Army Human Resources Command's (HRC) basis for denial was the absence of "official medical documentation."  The field doctor that attended him either did not document his hospital visit or the document was lost.  He further states he served honorably and voluntarily, picked shrapnel out of his body for over 20 years, lost much of his hearing, has detailed eye-witness accounts of the incident, and an Army x-ray of metal in his right leg.  
   
   c.  a statement from his former platoon leader who claims that on the morning of 4 October 1969 elements of the 1st Squadron, 4th Armored Cavalry were conducting a reconnaissance in force in an area approximately 9 miles southeast of Lai Khe, Republic of Vietnam, when they came under intense small arms, rocket-propelled grenades, and grenade fire from an insurgent force of squad to platoon strength.  Several of his men were injured in the initial volley, and the applicant jumped from his track to the ground.  Before he could reach their wounded comrades, an insurgent threw a grenade which exploded almost directly under him.  He was amazed the applicant survived the blast.  The applicant had several minor shrapnel wounds and some of his flak jacket was blown away, but he continued to minister to the wounded as they suppressed the attack.  The applicant then helped direct the "dustoff" and only left the field for a brief period the following day.  Several were wounded but they did not consider the wounds to be life threatening and they continued to Soldier on.
   
   d.  a self-authored statement adding to his platoon leader's statement in which he clarifies when he left the field the following day, he was transported to a small field hospital and the doctor said that they could easily remove the shrapnel in his right leg, but that he would be out of the field until it was sufficiently healed  and that the shrapnel would probably not be a problem for him if left alone.  Being a medic, he took a surgical knife and removed a chunk of metal from his shinbone and left the rest of the metal in his upper leg alone until this day.
   
   e.  a statement from a former medic attached to the applicant's unit who states that on or about 8 October 1969 they were engaged in an intense but brief firefight in which the applicant was one of several Soldiers who were wounded.  As medics, they treated themselves for wounds received instead of abandoning their men by allowing them to be evacuated to a field hospital since the wounds were minor.
   
   f.  a statement from a combat mechanic and side-gunner on Lima 8, an M113 personnel carrier who states he was to the left of the applicant's track.  He states the applicant dismounted his track and had a close encounter with the enemy and a grenade which injured the applicant's leg.  He further states that not everyone who was wounded was medically evacuated.
   
   g.  a letter, issued by HRC Awards and Decorations Branch, dated                   1 November 2013, denying the applicant's request for award of the Purple Heart.

10.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded to members wounded in action and states that in order to award the Purple Heart, there must be evidence the wound for which the award is being made was received as a result of enemy action, the wound required treatment by military medical personnel, and a record of the medical treatment was made a matter of official record.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his record to show award of the Purple Heart was thoroughly considered and it was determined there is insufficient evidence to support his request.

2.  The applicant's contention that he was wounded and treated in the field on 4 October 1969 in the Republic of Vietnam has been fully examined.  The medical evidence and statements provided by the applicant and others were carefully considered; however, they are not sufficient for award of the Purple Heart.

3.  The Board begins its consideration of each case with a presumption of regularity; that is, what Army records reflect is correct and the burden of proving otherwise rests with the applicant.  

4.  In this case, item 40 of the applicant's DA Form 20 is blank indicating he was not wounded in action.  In addition, his name is not included in the Vietnam casualty listing, the official Department of the Army list of Vietnam battle casualties.  Further, there is no indication he pursued award of the Purple Heart while he remained on active duty prior to his departure from Vietnam and his separation physical also fails to indicate he was wounded.

5.  As required by regulation, 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.  Such corroborating evidence has not been satisfied in the case.  

6.  In view of the foregoing, the regulatory burden of proof necessary to support award of the Purple Heart has not been met; therefore, it would not be appropriate to award the applicant the Purple Heart.

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)                                         AR20140007484





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ABCMR Record of Proceedings (cont)                                         AR20140007484



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