IN THE CASE OF:	  

		BOARD DATE:	  17 March 2015

		DOCKET NUMBER:  AR20150003524 


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, the widow of the former service member (FSM), requests correction of his records to show award of the Purple Heart.

2.  The applicant states the FSM served in the Republic of Vietnam (RVN) and he was hospitalized on 17 January 1968 for about a week.

   a.  She states the FSM suffered a traumatic brain injury (TBI) and other military-related conditions.  She also states he was told that he was entitled to the Purple Heart, but he never received the award.

   b.  The FSM passed away on 25 October 2014.  He is being interred at Arlington National Cemetery on 26 March 2015 and the applicant requests expeditious processing of her request.

3.  The applicant provides copies of a letter written by the FSM, postmarked
17 January 1968; his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); two Department of Veterans Affairs (VA) rating decisions; the FSM's death certificate; and a Headquarters, U.S. Army Human Resources Command (HRC), Fort Knox, KY, memorandum, dated 20 February 2015.

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 FSM was inducted into the U.S. Army on 8 March 1967.  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 8 August 1967 through 7 August 1968
* item 38 (Record of Assignments):  Company C, 4th Battalion, 
39th Infantry, 9th Infantry Division, from 11 August 1967 through 3 August 1968
* item 40 (Wounds) is blank (no entries)
* item 41 (Awards and Decorations) does not list 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 FSM and the examining physician to document the FSM's separation physical examination on 
16 December 1968 failed to show any evidence of injuries or wounds sustained while the FSM was serving in the RVN.

5.  The FSM's DD Form 214 shows he was honorably released from active duty on 7 March 1969.  He had completed 2 years of total active duty service this period that included 1 year of foreign service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) does not list the Purple Heart.

6.  A review of the FSM'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 FSM'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 FSM.

9.  On 20 February 2015, the Chief, Awards and Decorations Branch, HRC, Fort Knox, KY, notified the applicant's congressman that they were unable to verify the FSM's entitlement to the Purple Heart.

   a.  He advised that a review of historical casualty records from the Vietnam era did not locate the FSM's name among the list of battle casualties.

   b.  The review of the FSM's records resulted in the correction of his records to show additional awards.
   
   c.  A DD Form 215 (Correction to DD Form 214) was issued on 20 February 2015, that corrected item 24 of the FSM's DD Form 214.  The Purple Heart is not listed as one of the additional awards the FSM was authorized.

10.  In support of the application the applicant provides the following documents.

   a.  A letter written by the FSM to the applicant, postmarked 17 January 1968, that shows he wrote:
   
I bet you don't know where I'm at now.  I was helicoptered out of the jungle Tuesday.  I layed out there on that cold ground for 8 [indecipherable] until a truck came and got me.  And he took [me] about 6 miles where a helicopter could get me. 

The doctors don't know what's wrong with me.  I have a temperature always around 102-104 degrees.  I get hot and then I get cold.  I've been here for 5 days.  I'm sorry I didn't [write] you sooner.  When I get much better in about two or three days, I'll write you a long letter.

   b.  Two VA Rating Decision letters, dated 29 June 2011 and 10 December 2013, that show the VA granted the FSM service-connection for the following conditions –

* coronary artery disease associated with herbicide exposure – 60%
* residuals, TBI – 70%
* migraine headaches – 30%
* tinnitus – 10%

11.  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 request was carefully considered.

   a.  The applicant provides a letter that the FSM wrote in January 1968 and shows doctors determined that he had a fever.  However, there are no military medical records that show the cause or diagnosis of his condition, or the medical treatment he received.

   b.  The VA rating decisions show the FSM was granted service-connection for coronary artery disease associated with herbicide exposure; residuals, TBI; migraine headaches; and tinnitus.  However, a determination of service-connection by the  VA  does not satisfy the Purple Heart award requirement that the wound or injury was the result of a hostile act of the enemy (emphasis added).

   c.  The available military service records, which include the FSM's separation medical examination, do not show any evidence that he was wounded or injured in action as a result of a hostile act of the enemy.
   
   d.  The FSM's name is not listed on the Vietnam casualty roster.

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

   f.  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 for granting the request.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the former service member in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      ____________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)                                         AR20150003524



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150003524



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1