IN THE CASE OF:	  

		BOARD DATE:	  7 April 2015

		DOCKET NUMBER:  AR20140014187 


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 records to show award of the Purple Heart.

2.  The applicant states he served in the Republic of Vietnam (RVN).

   a.  While on a patrol, the Soldier in front of him stepped on a land mine, the mine exploded, and shrapnel lodged in the applicant's neck and leg.  He was engaged in the fighting and pulled the shrapnel out of his leg, but he couldn't go for help for the wound to his neck.

   b.  He states that he was transferred to several different units because of his health and age.  As a result, he doesn't know where any of his former buddies from the Army are located in order to contact them and get their statements.  He adds that a medical doctor at the Department of Veterans Affairs recently confirmed that a piece of metal is lodged in his neck.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and two civilian medical records.

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 
29 September 1965.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  His DA Form 20 (Enlisted Qualification Record) shows in –

* item 31 (Foreign Service), he served in Vietnam from 15 July 1966 through 3 July 1967
* item 38 (Record of Assignments):  Company A, 4th Battalion, 
31st Infantry, 196th Brigade, from 15 July 1966 through 28 June 1967
* item 40 (Wounds), no entries
* item 41 (Awards and Decorations), no entry for the Purple Heart

4.  A review of the Standard Form (SF) 89 (Report of Medical History) and SF 88 (Report of Medical Examination) prepared by the applicant and the examining physician to document the applicant's separation physical examination on 
3 July 1967 failed to show any evidence of an injury or wound to the applicant's neck or leg.

5.  The applicant's DD Form 214 shows he was honorably released from active duty on 3 July 1967.  He had completed 1 year, 9 months, and 5 days of net active duty service this period that included 11 months and 19 days of foreign service.  The Purple Heart is not listed on his DD Form 214.

6.  A review of the applicant's military personnel records failed to reveal any orders or other evidence that shows he was awarded the Purple Heart.

7.  A review of The Adjutant General's Office, Casualty Division's Vietnam casualty roster failed to reveal the applicant's name.

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 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.
9.  In support of his application the applicant provides two United Hospital Center records that show, on 18 September 2013, he was admitted to the hospital following a likely ischemic cerebrovascular accident.

   a.  On 19 September 2013, a magnetic resonance imaging (MRI) clearance procedure was conducted.  It was noted that there is a metallic foreign body in the applicant's right neck at the C4 level.  It shows the applicant indicated he was "unaware of any metallic foreign body in his neck other than a remote wound from shrapnel."  The physician recommended not performing the MRI.  The applicant was discharged from the hospital on 24 September 2013.

   b.  A handwritten note appears on one of the medical records that shows, "Here is the proof that [applicant] was wounded in Vietnam.  I hope that all of the Boards will work with us on this issue.  [Applicant] was wounded in RVN.  Veterans hospital in Clarksburg, WV, also has more (same) recent records."

10.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.  The Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.

   a.  A wound is defined as an injury to any part of the body from an outside force, element, or agent sustained in action in the face of the armed enemy or as a result of a hostile act of such enemy.

   b.  In order to support awarding a member the Purple Heart, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim to the Purple Heart was carefully considered.

   a.  The applicant provides medical records that show he has a metallic foreign body in his neck that he contends is from a shrapnel wound he received while serving in the RVN.  The medical records were created in September 2013, more than 46 years after the applicant's service in the RVN, and they offer insufficient evidence to support a claim to the Purple Heart.

   b.  His available military service records do not show any evidence that he was wounded or injured in action as a result of a hostile act by the enemy.  The applicant admits that he did not seek medical treatment at the time of the incident while on patrol.  In addition, there is no evidence of record that he received medical treatment at some point shortly after returning to his unit.  As such, it is reasonable to conclude that the wound did not require treatment.

   c.  The applicant's name is not listed on the Vietnam casualty roster.

   d.  There are no orders or any other evidence that shows he was awarded the Purple Heart.

   e.  Thus, the evidence of record does not support the applicant's claim.

2.  Therefore, in view of the foregoing, there is an insufficient evidentiary basis to grant the applicant's request.

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)                                         AR20140014187



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ABCMR Record of Proceedings (cont)                                         AR20140014187



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