IN THE CASE OF:	  

		BOARD DATE:	  2 June 2015

		DOCKET NUMBER:  AR20140012703 


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, in effect, that he received shrapnel wounds to his left elbow during a fire fight in the Republic of Vietnam (RVN) while serving as a right gunner assigned to the 11th Armored Calvary Regiment.  He received first aid from another Soldier and later the medic bandaged his injury.  He returned to duty and was later told to take the next helicopter out but he never did due to the mission.  In addition, the applicant indicated on his application that he desired to appear before the Board. 

3.  The applicant provides:

* self-authored statement
* two witness statements
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), effective 1 August 1969
* U.S. National Archives & Records Administration, Casualty Information System Printout
* Nation Personnel Record Center Memorandum
* Privacy Act Consent Form with allied documents

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.  On 2 August 1967, he was inducted into the Army of the United States.  After completing initial entry training, he served as an infantryman.  His DA Form 20 shows in:

* item 31 (Foreign Service) – he was credited with service in Vietnam from 18 January 1968 through 12 January 1969
* item 38 (Record of Assignments) – throughout his service in Vietnam he was assigned to principal duty as a personnel carrier driver and a senior scout observer with B Troop, 1st Squadron, 11th Armored Cavalry Regiment
* item 40 (Wounds) – no entries showing he was wounded
* item 41 (Awards and Decorations) – no entry for the Purple Heart

3.  On 1 August 1969, a DA Form 1811 (Physical and Mental Status on Release from Active Service) was prepared upon his release from active duty.  He did not report having been injured in the RVN, and the examining physician did not note any such injury.

4.  On 1 August 1969, he was honorably released from active duty.  His DD Form 214 does not show that he was awarded the Purple Heart.

5.  His complete service medical records are not available for review.

6.  Review of the Vietnam casualty listing compiled by The Adjutant General's Office, Casualty Division, does not show the applicant's name listed as a casualty.

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

8.  The applicant provides the following evidence.

	a.  A witness statement, dated 5 April 2014, from Specialist L____, who states he served as the medic for the 11th Armored Calvary, 1st Squadron, B Troop, 2nd Platoon during the period 13 December 1967 to 20 June 1969.  As a medic his duties included rendering aid to the wounded and filling out cards for the wounded to later be recorded in their official military record.  Often during combat these cards were either not filled out or due to the severity of the situation or the cards were misplaced if the injured Soldier stayed in the field and did not seek medical treatment.  He contends that B Troop was conducting a search and destroy mission in Hau Nghia Province, Vietnam when they were ambushed by Viet Cong and the National Vietnam Army.  The applicant was the first casualty and he bandaged a gunshot/shrapnel wound to the applicant's left forearm and elbow.  He continued to treat and monitor the applicant's injury after the fight to ensure there was no infection.  Because of the intensity of the fire fight and the fact that the applicant did not seek further treatment at a hospital, it is unclear if the injuries he sustained in combat were accurately documented.  It is his desire for the record to be corrected to show the applicant sustained a combat injury.

	b.  A witness statement, dated 6 February 2012, from JMM, a fellow Soldier who served with the applicant in Vietnam.  He contends that on or about 30 May 1968, their unit was ambushed by the Viet Cong and he remembers the applicant sustained shrapnel wounds to his left arm.  He was treated by a medic and returned to duty.

	c.  A printout from the U.S. National Archives & Records Administration which shows casualty information for a Soldier other than the applicant.

9.  Army Regulation 600-8-22 (Military Awards) provides that the Purple Heart is awarded for a wound sustained as a result of hostile action.  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.

10.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  

   a.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

   b.  Paragraph 2-11 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions when it is deemed necessary, and the Director or the ABCMR may grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was wounded in Vietnam but did not receive a Purple Heart was considered.  However, his service record is void of medical documentation which confirms he was wounded as a result of hostile action during his assignment in the RVN.

2.  The applicant's statements contending he received shrapnel wounds to his left elbow during a firefight and that he was treated by a field medic are acknowledged.  However, his service record is void of evidence which indicates he sustained this wound as the result of hostile action and his name is not listed on the Vietnam casualty roster.  

3.  By regulation, in order to award the Purple Heart, it is necessary to establish that a Soldier was wounded as a result of enemy action, the wound required treatment by medical personnel, and the treatment must have been made a matter of official record.  

4.  The eyewitness statements provided by the applicant were carefully considered; however, these statements alone are insufficient as a basis to grant him award of the Purple Heart.

5.  In the absence of independent corroborating evidence substantiating the statements provided, there is an insufficient basis upon which to award the Purple Heart.  Further, there is insufficient evidence to support a conclusion that a formal hearing is necessary to serve the interest of 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)                                         AR20140012703



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ABCMR Record of Proceedings (cont)                                         AR20140012703



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