IN THE CASE OF:	  

		BOARD DATE:	  6 August 2015

		DOCKET NUMBER:  AR20140021168 


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 he was hit twice by mortar fire while operating his D8 caterpillar as part of the 59th Engineers Land Clearing Company.  Their operational tempo was such that they didn't slow down for what would be considered minor issues.  The infantry was depending upon them.  Lives were on the line.

3.  The applicant provides:

* a newspaper column by TW, dated 1 June 2002
* 15 pages of photographs from his company's yearbook
* a letter, dated 8 December 2014, from the Itasca County Veteran's Service Officer
* an after action report, dated 10 February 1970
* a Transmittal of Award, dated 26 October 1970
* page 2 of a Noncommissioned officer (NCO) Evaluation Report, signed on 29 November 1969 
* four personal references

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 4 March 1968, he was inducted into the Army of the United States.

3.  He served in the Republic of Vietnam from 6 January 1969 to 5 January 1970. He was assigned to the Headquarters and Headquarters Company, 
45th Engineer Group, Land Clearing (Provisional), which was redesignated the 59th Engineer Company (Land Clearing) on 18 January 1969.

4.  His DA Form 20 (Enlisted Qualification Record) provides the following information in:

* item 40 (Wounds) - no entries describing wounds or injuries received as a result of enemy action that required medical treatment
* item 41 (Awards and Decorations) - no entry showing he was awarded the Purple Heart

5.  On 20 January 1970, he was released from active duty.  His DD Form 214 does not show he was awarded the Purple Heart.

6.  There are no orders in his official military personnel file (OMPF) that show he was awarded the Purple Heart.

7.  His name does not appear on the Vietnam casualty roster.

8.  A review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the Human Resources Command, failed to reveal any orders that show he was awarded the Purple Heart.

9.  His service medical records were not available for review.

10.  He provided the following documents:

	a.  A newspaper article showing the decorations awarded to his platoon sergeant along with a brief history of him 33 years after his death.  The article does not mention the applicant.

	b.  Fifteen pages of photographs from his company's yearbook.  These pages provide no evidence of his being wounded.

	c.  A letter, dated 8 December 2014, from the Itasca County Veterans Service Officer.  He describes two incidents where the applicant received shrapnel wounds.  One incident involved a piece of shrapnel in his eye which required his medical evacuation (MEDVAC) to a hospital ship.  The applicant does not remember the name of the hospital ship.

	d.  An after action report for the 59th Engineer Company's clearing of approximately 5,900 acres.  The report mentions a common reason for delay was dozers hitting anti-tank mines.  It also states the main problem encountered was the distance from home base to the operational area of approximately 60 miles requiring an extensive amount of travel to and from home base for personnel and administrative problems.  The report does not address any casualties suffered by the company or medical evacuations.

	e.  A transmittal letter forwarding orders awarding the applicant the Army Commendation Medal.

	f.  The second page of his NCOER, signed on 29 November 1969.  The NCOER does not mention the applicant having been wounded as a result of hostile action or that he was MEDVAC'd.

	g.  Four personal references from individuals who state they were assigned with the applicant in the Republic of Vietnam.  However, only two of the statements indicated they knew about the applicant's injury or that he was MEDVAC'd.  None of the statements indicated they were with the applicant at either time he states he was wounded.

11.  Army Regulation 600-200 (Enlisted Personnel Management System), chapter 9 of the version in effect at the time, stated, in pertinent part, that a brief description of wounds or injuries (including injury from gas) requiring medical treatment that were received through hostile or enemy action, including those requiring hospitalization, would be entered in item 40 of the DA Form 20.  This regulation further stated the date the wound or injury occurred would also be placed in item 40.

12.  Army Regulation 672-5-1 (Military Awards), then in effect, provided that the Purple Heart was awarded to any member of an Armed Force or any civilian national of the United States who while serving under competent authority in any capacity with one of the U.S. Armed Services had been wounded, killed, or who had died as a result of a wound sustained 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.

DISCUSSION AND CONCLUSIONS:

1.  Item 40 of his DA Form 20 does not contain any entries indicating he was wounded as a result of hostile or enemy action.  There are no orders in his MPRJ that show he was awarded the Purple Heart.  His name does not appear on the Vietnam casualty roster.  His medical records were not available for review.

2.  The documents he provided do not show any evidence he was wounded as a result of hostile or enemy action.

3.  In the absence of substantive evidence showing he was wounded as a result of hostile action, that the wound required treatment by medical personnel, and that the treatment was made a matter of official record, there is an insufficient evidentiary basis for awarding the Purple Heart.

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)                                         AR20140021168





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ABCMR Record of Proceedings (cont)                                         AR20140021168



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