IN THE CASE OF:	  

		BOARD DATE:	  2 June 2015

		DOCKET NUMBER:  AR20140017652 


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 that he served in the Republic of Vietnam (RVN) and sustained a shrapnel wound to his left leg (calf).  He also states that he suffers from bilateral hearing loss (tinnitus).

3.  The applicant provides copies of his Department of Veterans Affairs (VA) claim 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.  The applicant was inducted into the U.S. Army on 27 May 1969.  He was awarded military occupational specialty 12B (Combat Engineer).

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

* item 31 (Foreign Service) his service in Vietnam began on 8 January 1970
* item 38 (Record of Assignments) Company D, 20th Engineer Battalion (Combat) from 15 January 1970 through 28 November 1970
* item 40 (Wounds) no entries (blank)
* item 41 (Awards and Decorations) no entry for the Purple Heart

4.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was honorably released from active duty on 
1 December 1970.  He had completed 1 year, 6 months, and 5 days of net active duty service this period.  The Purple Heart is not listed on his DD Form 214.

5.  A review of the applicant's military personnel records failed to reveal any evidence that shows he was wounded in action or awarded the Purple Heart.

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

7.  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.

8.  In support of his application the applicant provides copies of his VA claim documents that show on:

* 22 May 2013, the VA Health Care Center at Harlingen, TX, performed a diagnostic test (x-ray of left leg) and found "bone density is normal; no osteolysis, bone mass or fracture; punctate radiopaque debris resides in the calf soft tissues"
* 14 June 2013, he requested increased evaluation of his service connected disabilities for post shrapnel wound, bilateral hearing loss and tinnitus


* 31 March 2014, the VA determined the following conditions were related to his military service:

* tinnitus, evaluated at 10 percent, effective 20 June 2013
* bilateral hearing loss, 0 percent, effective 20 June 2013
* status post shrapnel wound, gastrocnemius muscle group 11, calf, left leg (including scar), 0 percent (no change), effective date not available

9.  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 a VA medical record and claim documents that show he was granted service connection for a post shrapnel wound (punctuate radiopaque debris in the left leg (calf) soft tissues).  The medical record was created in May 2013, more than 43 years after the applicant's service in the RVN, and it offers insufficient evidence to support a claim for the Purple Heart.
   
   b.  The applicant does not provide and the record does not contain any contemporaneous medical records that show he was treated for an injury or wound that was the result of hostile action in the RVN in 1970.

   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 to the Purple Heart.
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)                                         AR20140017652



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ABCMR Record of Proceedings (cont)                                         AR20140017652



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