IN THE CASE OF: BOARD DATE: 31 August 2010 DOCKET NUMBER: AR20100008388 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 (PH) for wounds received in action in Vietnam. 2. The applicant states that because he was injured by shrapnel in Vietnam, he wants the PH. He adds that he did not receive treatment in the field for the mortar blast shrapnel injury. He finally adds that in 1988 he had the shrapnel metal removed from his buttocks. 3. The applicant provides a copy of a Standard Form 89 (Report of Medical History) and a copy of the Department of Veterans Affairs rating decision, dated 15 December 2009, in support of his application. 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's record shows he was inducted into the Army of the United States and entered active duty on 26 July 1967. He was trained in and awarded military occupational specialty 11B (Light Weapons Infantryman). The highest rank/grade he attained was specialist four/pay grade E-4. 3. The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from 5 January 1968 through 13 October 1968. Item 38 (Record of Assignments) shows he was assigned to Company A, 2nd Battalion, 14th Infantry, 25th Infantry Division, Vietnam. Item 40 (Wounds) is blank. Item 41 (Awards and Decorations) does not show the award of the PH. 4. The applicant's official military personnel file (OMPF) is void of any orders or other documents to indicate he was ever awarded the PH by proper authority while serving on active duty. The OMPF also does not contain any medical treatment records to indicate he was ever treated for a combat-related wound or injury while serving in Vietnam. 5. On 6 May 1969, the applicant was honorably released from active duty after completing a total of 1 year, 9 months, and 11 days of active military service. The PH is not shown on his DD Form 214. Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, Combat Infantryman Badge, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14). 6. There is no documentation in the applicant's military personnel records to show he was wounded or treated for wounds as a result of hostile action. 7. A review of the Adjutant General's Office Casualty Division's Vietnam casualty roster confirmed the applicant's name is not on the roster. 8. A search of the U.S. Army Human Resources Command Awards and Decorations Computer Assisted Retrieval System for the Vietnam Conflict failed to produce orders showing the applicant was awarded the PH. 9. On 2 February 2010, the applicant submitted three pages of his Standard Form 89, dated 21 April 1970, and a copy of the VA's decisional document. The Standard Form 89 does not show that the injury he received was a result of hostile action. The VA rating decision, dated 23 June 2009, granted the applicant 10-percent service connection for tinnitus. The service connection for a right lower buttocks scar was granted with an evaluation of 0 percent. The applicant was previously denied service connection for residuals of back injury. 10. Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations. This regulation provides that the PH is awarded for 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. The applicant's contentions and the evidence submitted with his application were carefully considered. However, by regulation, in order to be awarded the PH, substantiating evidence must be presented to show the Soldier was wounded as 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. 2. The applicant's military record is void of any orders or other documents to indicate he was ever awarded the PH by proper authority while serving on active duty. It also contains no medical treatment records that indicate he was ever treated for a combat-related wound while serving in Vietnam. 3. Further, the applicant's name is not included on the Vietnam casualty roster, the official DA list of Vietnam battle casualties. Absent any evidence of record confirming the applicant was wounded in action or treated for a combat-related wound while serving in Vietnam, the regulatory burden of proof necessary to support award of the PH has not been satisfied in this case. 4. In regard to the medical documents submitted by the applicant in support of his application, none of the documents show the injury he received was a result of hostile action. 5. Although the VA granted the applicant 10 percent for service-connected tinnitus and acknowledged that the applicant's buttocks scar was directly related to military service, there was no evidence that the injury was the result of hostile action. 6. Regrettably, in view of the foregoing there is no basis for granting the applicant's requested relief. 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) AR20100008388 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) A