BOARD DATE:	  26 February 2015

		DOCKET NUMBER:  AR20140011987 


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, in effect, the following:

* award of the Purple Heart and its addition to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) ending on 1 June 1973
* a personal appearance before the Board

2.  The applicant states he was wounded in battle while defending a position on 20 March 1971.  He was medically evacuated off the hill to the aid station and he was returned back to duty.  During his entire second reenlistment he was told continuously that "they" were checking on it.  He was unaware after his separation that there was a way to request a correction.

3.  The applicant provides copies of the following:

* two DD Forms 214 ending on 5 March 1970 and 1 June 1973
* Article from the Miami Herald
* email correspondence from a retired platoon Soldier

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant's military records show he was inducted into the Army of the United States on 6 March 1968.  He was awarded military occupational specialty (MOS) 11D (armor reconnaissance specialist).  He was honorably released from active duty on 5 March 1970 and was transferred to the U.S. Army Reserve Control Group (Annual Training).  He was credited with completing 2 years of active service.  His DD Form 214 lists the National Defense Service Medal.

3.  He enlisted in the Regular Army on 1 September 1970 and he held MOS 11D. He served in Vietnam from 5 October 1970 through 4 October 1971 and from 7 June 1972 through 3 February 1973.

4.  He was honorably released from active duty on 1 June 1973 and he was transferred to the Tennessee Army National Guard (TNARNG).  He was credited with completing 2 years, 9 months, and 1 day of net active service this period.  His DD Form 214 lists the:

* Vietnam Service Medal with 5 bronze service stars
* Bronze Star Medal
* Army Commendation Medal
* Combat Infantryman Badge
* Republic of Vietnam Campaign Medal with Device 1960
* National Defense Service Medal

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

* Item 40 (Wounds) no entry to show he was wounded in action while serving in Vietnam
* Item 41 (Awards and Decorations) of this form lists all the awards shown on his 1973 DD Form 214 and 2 overseas service bars and the  TNARNG Volunteer Ribbon


6.  His complete medical records for his period of active duty are not available for review with this case.

7.  His name is not shown on the Vietnam casualty roster.

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 Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal any orders for award of the Purple Heart pertaining to the applicant.

9.  He provided copies of the following:

   a.  An article from the Miami Herald, dated 25 February 1990, wherein a former Soldier [Dxxxxx Lxxxxxxx] recalled a battle in Vietnam that occurred on 20 March 1971.  The individual stated that he bore the scars of his Vietnam combat experience and on his lapel he wore a Purple Heart.  He also stated that he could not recall the names of a single Soldier on the hill with him, but he remembered individuals by the name of Bxxxxx, Cxxxxx, Hxxx [the applicant], Bxxxxx, Bxxxxx, and there were about 35 Soldiers in all on the hill on that date.  He recalled on the night of the battle, the applicant was calling the firebase for artillery support and while the applicant was on the radio, the round hit that screwed him up.  For his combat wounds he received the Purple Heart, but it wasn't until 1987, 9 years later.

   b.  An email, dated 2 July 2014, wherein a retired platoon sergeant, stated his unit was hit by a rocket attack on 20 March 1971.  He sustained shrapnel wounds to the back and the right lower leg.  What he remembered was that the applicant was injured at the same time.  At the time, he wasn't informed of the applicant's injury and he never found out until he returned to the platoon a few days later.  His statements were to the best of his knowledge of what happened on 20 March 1971.

9.  Army Regulation 600-8-22 (Military Award) states the Purple Heart is awarded for a wound sustained as a result of enemy 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.

10.  Army Regulation 15-185, paragraph 2-11, states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing (personal appearance) whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record and the applicant did not provide sufficient evidence showing he sustained a wound/injury as a result of enemy action, received treatment, and that treatment was made a matter of official record for award of the Purple Heart during his periods of service in Vietnam.  Additionally, his complete medical records, which are necessary to confirm that treatment was required, are not available for review. Item 41 of his DA Form 20 does not show he was wounded.  Item 41 of this form does not list the Purple Heart.  His name also does not appear on the Vietnam casualty roster.

2.  By regulation, to be awarded the Purple Heart it is necessary to established 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.

3.  Notwithstanding his contentions and his sincerity, in the absence of evidence, there is insufficient evidence upon which to base award of the Purple Heart.  Therefore, he is not entitled to award of the Purple Heart.

4.  With regard to his request for a personal appearance before the Board, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice 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)                                         AR20140011987





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ABCMR Record of Proceedings (cont)                                         AR20140011987



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