IN THE CASE OF:	   

		BOARD DATE:	  12 March 2015

		DOCKET NUMBER:  AR20140011918 


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 the Purple Heart.

2.  The applicant states he received the Purple Heart but it is not shown on his DD Form 214.  He was wounded on his right leg in the jungle of Vietnam.  He does not remember the exact date.  He knows he was wounded while retrieving the bodies of his fellow Soldiers in Vietnam.  He was wounded on the same day his buddy Davis J----r was killed.  

3.  The applicant provides:

* DD Form 214
* Photographs of the Purple Heart

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 6 November 1967 and he held military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  He served in Vietnam from on or about 16 May 1968 to on or about 8 May 1969.  He was assigned to:

* Company D, 2nd Battalion, 28th Infantry, 1st Infantry Division, from on or about 25 May 1968 to 14 November 1968
* Security Guard Company, U.S. Army Vietnam (USARV), from 15 November 1968 to 12 February 1969
* Company D, 1st Infantry, from 13 February 1969 to 7 May 1969 

4.  He underwent a separation physical on 1 October 1969 at Fort Lewis, WA.  No injury or treatment is listed on his Standard Form 88 (Report of Medical Examination) or Standard Form 89 (Report of Medical History). 

5.  He was honorably released from active duty on 5 November 1969.  His DD Form 214 does not show award of the Purple Heart. 

6.  He provides photographs of a Purple Heart medal set.  

7.  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:

* Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) does not show a combat wound or injury
* Item 41 (Awards and Decorations) of his DA Form 20 does not list the Purple Heart as an authorized award
* His records do not contain general orders authorizing him award of the Purple Heart
* His name is not shown on the Vietnam casualty listing
* 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
* His available service medical records do not reveal a combat injury of treatment 
* His records do not contain an official Army notification or a Western Union telegram notifying his next of kin of an injury
8.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained while in action against and 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 by medical personnel, 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 the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.

2.  The applicant's service record is void of any orders that show he was awarded the Purple Heart or that he was wounded or injured as a result of combat.  His name is not listed on the Vietnam casualty listing.  His available service medical records do not reflect a combat injury or treatment.  The VA progress notes and/or rating decision he provides do not confirm he was wounded as a result of hostile action or that he required treatment by medical personnel.

3.  The applicant's contention and sincerity are not in question.  However, in the absence of documentation that conclusively shows he was wounded or injured as a result of enemy action and treated for those wounds, there is insufficient evidentiary basis for awarding him 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:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      _____________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)                                         AR20140011918





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ABCMR Record of Proceedings (cont)                                         AR20140011918



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